Chadwick and Minister for Home Affairs (Migration)
[2020] AATA 983
•28 April 2020
Chadwick and Minister for Home Affairs (Migration) [2020] AATA 983 (28 April 2020)
Division:GENERAL DIVISION
File Number: 2020/2198
Re:Christian Chadwick
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:28 April 2020
Place:Perth
The application 2020/2198 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to grant an extension of time, or to review the Non-revocation Decision.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – application for extension of time – decision of delegate of the Minister not to revoke mandatory cancellation of visa – whether Applicant filed application for review within nine day statutory time limit s 500(6B) – Migration Act 1958 (Cth) – Migration Regulations 1994 (Cth) – Tribunal cannot extend time – procedure for notification of non-revocation decision under s 501G of the Migration Act 1958 (Cth) – time Applicant taken to have received notification of non-revocation under reg 2.55 of the Migration Regulations 1994 (Cth) – whether letter to the Department could constitute valid application for review – operation of s 500(6L) of the Migration Act 1958 (Cth) requiring Tribunal to make decision within 84 days – Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4) – Tribunal satisfied no jurisdiction – application dismissed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 29(7), 29(8), 42A(4)
Migration Act 1958 (Cth) - ss 500(6B), 500(6L), 501(3A), 501CA, 501CA(4), 501G(1), 501G(2), 501G(3)
Migration Regulations 1994 (Cth) – regs 2.55, 2.55(3)(c), 2.55(7)(a)
CASES
Lesianawai and Minister for Home Affairs [2019] AATA 2947
Russell v Minister for Home Affairs [2019] FCAFC 110
Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86
SZNZL and Minister for Immigration and Citizenship (2010) 186 FCR 271
Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
28 April 2020
OVERVIEW
The Applicant is a citizen of New Zealand. He is currently serving a sentence of imprisonment in Western Australia.
On 27 March 2018, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) on the basis that he failed the character test (the Cancellation Decision).
The Applicant was given the opportunity to make representations about why the Cancellation Decision should be revoked, which he did. However, after considering these representations, on 23 December 2019, a delegate of the Department of Home Affairs made a decision under s 501CA(4) of the Migration Act not to revoke the Cancellation Decision (the Non-revocation Decision).
On 16 April 2020, the Applicant filed an application for extension of time for making an application for review of the Non-revocation Decision in the Administrative Appeals Tribunal (the Tribunal), requesting that the Tribunal extend the time to allow the Non-revocation Decision to be reviewed.
The Respondent contends that the Tribunal does not have jurisdiction because an application for review was not filed within the statutory time limit.
For the reasons set out below, the Tribunal agrees that it does not have jurisdiction to extend the time, and that it does not have jurisdiction to hear the application for review.
ISSUE
The issue before the Tribunal is one of jurisdiction. Specifically, the issue is whether the Tribunal has jurisdiction: to grant an extension of time for making an application for review of the Non-revocation Decision; and to determine the application, even though an application for review was not filed within the statutory timeframe.
Below the Tribunal addresses a series of questions relevant to determining whether the Tribunal has jurisdiction. These are:
(a)Was the Applicant properly notified of the Non-revocation Decision?
(b)If so, when was the Applicant taken to have received the notification?
(c)
Did the Applicant lodge an application for review with the Tribunal within the
nine day statutory time limit?
(d)Can the Tribunal grant an extension of time for making an application for review of the Non-revocation Decision?
WAS THE APPLICANT PROPERLY NOTIFIED OF THE NON-REVOCATION DECISION?
Subsection 501G(1) of the Migration Act sets out the requirements for the notification of a decision under various sections of the Migration Act, including s 501CA. It provides:
(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person; or
(ba)not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c)sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non-disclosable information) for the decision; and
(f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone—sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
In this application, the relevant notification documents are the ‘G-documents’ which were put into evidence as Exhibit 1. These documents comprise a covering letter addressed to the Applicant dated 23 December 2019, the delegate’s Non-revocation Decision of the same date, a statement of reasons for the decision and attachments including documentation considered by the decision-maker. The letter and the decision state the decision and specify that the decision was made under s 501CA(4) of the Migration Act. The letter states the effect of the decision was that the Applicant’s Visa remained cancelled and that he did not hold a visa authorising him to travel to, enter or remain in Australia.
Further, the letter stated that the Applicant had the right to have the decision reviewed by the Tribunal. It stated that the application had to be lodged with the Tribunal within nine days after the Applicant was taken to be notified of the decision (and that, as he did not have an authorised recipient who could receive documents on his behalf, he was taken to have received the documents seven working days after the date of the letter). The written notice also enclosed an information sheet about how to apply to the Tribunal for review, and enclosed an information sheet explaining the relevant procedural provisions of the Migration Act (s 500(6A) through to s 500(6L)). Consequently, the Tribunal finds that the notification documents relating to the Non-revocation Decision given to the Applicant complied with s 501G(1) of the Migration Act.
Subsection 501G(2) of the Migration Act provides that:
(2)If the decision referred to in subsection (1):
(a)was made by a delegate of the Minister under subsection 501(1) or (2), or section 501CA; and
(b)is reviewable by the Administrative Appeals Tribunal; and
(c)relates to a person in the migration zone;
the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d)is in the delegate’s possession or under the delegate’s control; and
(e) was relevant to the making of the decision; and
(f) does not contain non-disclosable information.
The Respondent filed a copy of an electronic file note recorded on the Department’s electronic filing system, called TRIM, which states, ‘Notice of decision to Not revoke – two copies posted to client in prison 23/12/2019’ (attached to Exhibit 4). Accordingly, the Tribunal finds that two copies of the decision record with attached documents were provided to the Applicant in accordance with s 501G(2) of the Migration Act.
Subsection 501G(3) of the Migration Act states that ‘[a] notice under subsection (1) must be given in the prescribed manner’. Regulation 2.55 of the Migration Regulations 1994 (Cth) (the Regulations) outlines the prescribed rules for the ‘[g]iving of documents relating to proposed cancellation, cancellation or revocation of cancellation’ under
s 501CA of the Migration Act. Subregulation 2.55(3)(c) provides:
(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:
…
(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;…
Thus, the notification had to be posted within three working days of 23 December 2019 (the date of the letter to the Applicant notifying him of the Non-revocation Decision), being 27 December 2019. A copy of the Australia Post tracking history shows that the written notice was sent by registered post to the Applicant’s prison address and was processed on Friday 27 December 2019 (attached to Exhibit 4). Therefore, the Tribunal finds that the letter was dispatched within the required three day period.
The Tribunal has previously found that a notification is validly made by sending it to the postal address of a prison where an applicant is imprisoned (Lesianawai and Minister for Home Affairs [2019] AATA 2947 at [52] to [75]). Accordingly, the Tribunal finds that in this application it was acceptable that the written notice was addressed to the Applicant at the prison where he is currently serving a sentence of imprisonment.
Overall, the Tribunal finds that the Applicant was properly notified.
WHEN WAS THE APPLICANT TAKEN TO HAVE RECEIVED THE NOTIFICATION?
Subregulation 2.55(7)(a) of the Regulations states:
(7)If the Minister gives a document to a person by dispatching it by prepaid post or by other prepaid means, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia — 7 working days (in the place of that address) after the date of the document; or…
It does not matter when the document was physically received by an applicant.
The document is taken to have been received by an applicant at the time specified in the Regulations (SZNZL and Minister for Immigration and Citizenship (2010) 186 FCR 271,
278 [36]). That is, deemed receipt is not a presumption that is rebuttable by evidence of actual receipt (Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172, [13]; see also Sainju v Minister for Immigration and Citizenship (2010) 185 FCR 86, 94 [56]).
In accordance with reg 2.55(7)(a), the Tribunal finds that the Applicant was taken to have received the Non-revocation Decision on 6 January 2020, being seven working days after the 23 December 2019 letter to the Applicant notifying him of the Non-revocation Decision.
DID THE APPLICANT LODGE AN APPLICATION FOR REVIEW WITH THE TRIBUNAL WITHIN THE NINE DAY STATUTORY TIME LIMIT?
Subsection 500(6B) of the Migration Act states:
(6B)If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.
In summary, if a person is in the migration zone, the application to the Tribunal for the review of a decision under s 501 or 501CA(4) of the Migration Act must be lodged with the Tribunal within nine (9) days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Migration Act.
As the Applicant was, by operation of reg 2.55(7)(a), taken to have received the
Non-revocation Decision on 6 January 2020, the latest date that the Applicant could lodge an application for review in the Tribunal was nine days after that date, being 15 January 2020.
The Applicant lodged an extension of time application in the Tribunal on 16 April 2020.
By that date, he was approximately three months out of time. Even if the Tribunal were to regard the extension of time application as an application for review, it would be approximately three months out of time.
The Applicant did, however, write two letters dated 8 January 2020. These were sent to the Tribunal with the application for extension of time for making an application for review of the Non-revocation Decision, and were received by the Tribunal on 16 April 2020. The Tribunal will now consider whether either or both could be regarded as an application to the Tribunal.
One letter is handwritten (Exhibit 2), and one is typed (Exhibit 3). Both have the same subject line: ‘Re: Letter to the Department of Immigration’. The letters are substantially similar in content in that they both: state the Applicant’s intention to appeal the
Non-revocation Decision; express uncertainty about the Tribunal; and seek clarification of the information the Tribunal would need to proceed.
Exhibit 2 states in part:
I … and my partner have made a decision together to appeal your decision by cancelled [sic] my Visa. Myself and my partner do not know what happens from here? Myself and my partner do not know what the Administrative Appeals Tribunal is about or what they are? We do not know what information they want or need from myself or my family etc? Also my partner is seeking advice from a immigartion [sic] lawyer in regard of what to do about this issue. If possible I would also like to request to the Department of Home Affairs information about what the Administrative Appeals Tribunal “is” and “about” and if they need more information about myself and my family…
Exhibit 3 states in part:
Thank you for taking the time and all factors into consideration, at the same time giving me the opportunity to submit my intention to appeal the decision of intention of deportation.
I … am writing to the Department of Home Affairs to let the Department be aware that myself and my partner have come to the decision and we think the best decision for my family together we are going to appeal the decision by cancelled [sic] my Visa. I and my partner do not fully comprehend what formalities are next.
For me and my family we don’t fully understand what is required by the Administrative Appeals Tribunal, and for us as a family we would like to give the opportunity of an appeal every chance we have.
We have limited information for what is required from me and my family.
My partner is engaging with a [sic] immigration specialist lawyer for assistance in regarding of [sic] what we can do about this issue.
It would be immensely appreciated if I could also obtain any vital information from the Department of Home Affairs about the Administrative Tribunal is about and the formalities, also if the Department would like any additional information about myself or my family…
It is unclear whether these letters were actually sent to, or if they were received by, the Department. According to counsel for the Respondent at the interlocutory hearing, they were included in the bundle of documents filed by the Applicant in the Tribunal, but did not appear to be on the Department’s file sent to counsel. This suggests that they may not have been received by the Department.
However, even if either or both of these letters were sent by the Applicant and received by the Department, they would nevertheless not be a valid application to the Tribunal. Notifying the Department is insufficient because s 500(6B) of the Migration Act requires that the application must be ‘lodged with the Tribunal’. Thus, an application is not made until it is received by the Tribunal (see generally Russell v Minister for Home Affairs [2019] FCAFC 110). The Tribunal’s lodgement records indicate that these letters were not in fact lodged with the Tribunal until 16 April 2019 (approximately three months out of time), when they were included in the bundle of G-documents filed by the Applicant
(in Exhibit 1).
The Tribunal finds that an application for review was not filed within the nine day statutory time limit.
Additionally, s 500(6L) of the Migration Act states:
(6L)If:
(a) an application is made to the Tribunal for a review of a decision under section 501 of this Act or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa; and
(b) the decision relates to a person in the migration zone; and
(c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1);
the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review.
(Original emphasis.)
In summary, s 500(6L) effectively provides that the Tribunal must make a decision on the application to review the Non-revocation Decision within 84 days after the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. If the Tribunal has not made a decision by this time, the Tribunal is taken to have made a decision to affirm the Non-revocation Decision.
In the Applicant’s circumstances, the 84 day period would have commenced running from 6 January 2020, requiring the Tribunal to make a decision by no later than 30 March 2020. Thus, even if the Tribunal was able to regard either of the 8 January 2020 letters as being valid applications to the Tribunal (which it has found they were not), it would nevertheless be futile to the Applicant because the Non-revocation Decision would have been affirmed by operation of s 500(6L) of the Migration Act when the Tribunal did not make a decision by 30 March 2020.
CAN THE TRIBUNAL EXTEND THE TIME FOR MAKING AN APPLICATION FOR REVIEW OF THE NON-REVOCATION DECISION?
Subsection 500(6B) of the Migration Act excludes ss 29(7) and (8) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) under which the Tribunal may extend the time for making an application for review. Therefore, the Tribunal has no power or discretion to be able to extend the time for the Applicant to make an application for review of the Non-revocation Decision.
CONCLUSION - DISMISSAL FOR NO JURISDICTION
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’.
As the Applicant did not file an application for review within the nine day period prescribed by s 500(6B) of the Migration Act, and as the Tribunal has no jurisdiction to grant an extension of time, the Tribunal is satisfied that it does not have jurisdiction to review the Non-revocation Decision.
DECISION
The application 2020/2198 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to grant an extension of time, or to review the Non-revocation Decision.
I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
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Associate
Dated: 28 April 2020
Date of hearing: 23 April 2020 Applicant: Represented by his partner Counsel for the Respondent: Mr A Gerrard Solicitors for the Respondent: The Australian Government Solicitor
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