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

[2024] AATA 1094

Corbett and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1094 (16 May 2024)

Division:GENERAL DIVISION

File Number:          2024/2460

Re:Matenga Ropata Uriah Corbett

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:16 May 2024

Place:Brisbane

Pursuant to section 42A(4) of the Administrative Appeals Tribunal Act1975 (Cth) dismisses this application for review.

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

Senior Member Theodore Tavoularis

Catchwords

PRACTICE AND PROCEDURE- review application lodged out of time- where the Applicant claims he previously submitted his application within time- where the claimed in time submission was sent by email- where the recipient email address for the in time submission does not exist – Tribunal finding the in time submission was never received by the Tribunal – whether Tribunal has discretion to extend time for lodgement of the review application - consideration of section 500(6B) of the Migration Act 1958 (Cth)- Tribunal finding it is legislatively barred from considering an extension of time application- Tribunal finding lack of jurisdiction - application dismissed.

Legislation

Administrative Appeals Tribunal 1975 (Cth)
Migration Act 1958 (Cth)

REASONS FOR DECISION

Senior Member Theodore Tavoularis

16 May 2024

INTRODUCTION

1. On 23 April 2024 this Tribunal received an application under the hand of ‘Matenga Ropata Uriah Corbett’ (‘the Applicant’). The application sought review of decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) on 18 March 2024 (‘the delegate’s decision’). This decision involved the delegate’s refusal to revoke the earlier mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category visa (‘the Visa’).

2. In accordance with its usual triaging procedures for the applications it receives, the Tribunal noticed a possible procedural difficulty impeding this application’s ventilation along the usual pathway towards a hearing and a decision. Consequent upon noticing this possible procedural difficulty, the Tribunal convened an interlocutory hearing by telephone on

   
   

   1 May 2024. There followed two further interlocutory hearings on 3^rd and 13^th May 2024.

3. Following conclusion of the third and final interlocutory hearing by telephone on

   
   

   13 May 2024, the Tribunal reserved the matter and informed the parties of its intention to publish written reasons about its findings on the abovementioned possible procedural difficulty. For reasons that follow the Tribunal has concluded that it does not have jurisdiction to further entertain this application.

   ISSUE

4. At issue before the Tribunal is the question of whether it has jurisdiction to review the delegate’s decision made on 18 March 2024.

   RELEVANT TIMELINE

5. The relevant sequence of events can be stated thus:

   ·21 March 2023: the Applicant’s Visa was mandatorily cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (‘the Act’). The Applicant duly made representations seeking the revocation of the mandatory cancellation decision;

   ·18 March 2024: the Respondent’s delegate made a decision pursuant to section 501CA(4) of the Act refusing to revoke the mandatory cancellation decision. The Applicant was duly notified of this decision and signed an acknowledgement to that effect on 18 March 2024;

   ·23 April 2024: the Applicant filed the within application (dated 23 March 2024) seeking review of the delegate’s decision made on 18 March 2024;

   ·1,3 and 13 May 2024: the Tribunal conducted various interlocutory hearings by telephone to determine the primary issue of whether the Applicant had filed his application with this Tribunal within the time mandated by the Act for doing so.[1] At the conclusion of the third interlocutory hearing the parties agreed the material before the Tribunal comprised the documents listed in the Exhibit List which is attached to these Reasons and marked ‘Annexure A’.

   [1] Section 500(6B) of the Act.

   THE PARTIES’ SUBMISSIONS

6. The Applicant’s principal submission can be gleaned by reference to Exhibit A2. He contends that he forwarded his abovementioned application dated 23 March 2024 to this Tribunal as an attachment to that particular email dated 25 March 2024 (3:26:23 PM AEDT). Specifically, the Applicant contends that he spoke with someone from the Registry of this Tribunal and that he was given to understand from that conversation that he was to forward his application to the email address comprising ‘[email protected]’.

7. The resulting contention made by the Applicant is that on the basis of the above sequence of events, his application is within time such as to invoke this Tribunal’s jurisdiction. In particular, the Applicant contends he (1) received the delegate’s decision on 18 March 2024;[2] and (2) filed his application seeking review of that decision on 25 March 2024; thus (3) ensuring his application to this Tribunal complied with the nine (9) day requirement appearing in section 500(6B) of the Act.

   [2] See fourth page of Exhibit R1 comprising the Applicant’s duly signed and witnessed acknowledgement of receipt of the delegate’s decision made on 18 March 2024.

8. Thus, says the Applicant, the Tribunal’s jurisdiction is duly invoked, and he is consequently entitled to fulsomely ventilate the instant application in this Tribunal.

9. The Respondent disagrees. The Respondent notes and confirms due provision of the delegate’s decision to the Applicant on 18 March 2024. However, the Respondent’s central contention is that the Applicant’s purported email appearing at Exhibit A2 was either never forwarded by the Applicant or, in the alternative, was never received by this Tribunal.

10. In other words, and to be clear, the Respondent’s position is that this Tribunal has never received an email from the email address appearing at Exhibit A2 comprising: ‘[email protected]’.

11. Rather, contends the Respondent, the first (and only) notification this Tribunal received about any application from the Applicant dated 23 March 2024 occurred on 23 April 2024. This notification appears at Exhibit A1 and constitutes an email sent by the Applicant to ‘[email protected]’.

12. On this basis, the Respondent’s resulting contention is that the email sent to ‘[email protected]’ on 23 April 2024 offends section 500(6B) of the Act because it was filed outside the nine (9) day period following due provision of the delegate’s decision to the Applicant on 18 March 2024.

13. The ultimate contention from the Respondent is that the Tribunal’s jurisdiction is not engaged and that this application must thereby be dismissed pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’).

    THE INTERLOCUTORY SEQUENCE

14. As noted above, there were two adjournments of the initial interlocutory hearing by telephone. The sequence of events requiring the two adjournments was as follows:

    ·on 1 May 2024 the Applicant’s simple contention was that he did, within the necessary nine (9) day period, send an email to the Tribunal attaching his application dated 23 March 2024. However, he could not identify the Tribunal’s specific email address to which he says he forwarded the subject email containing his application. The Tribunal then adjourned the first interlocutory hearing to afford the Applicant an opportunity to locate and/or identify the email he claims to have sent within time. The Tribunal also undertook to search its own email records for any email received from the Applicant within the relevant nine (9) day timeframe;

    ·on 3 May 2024 the Applicant produced (for the first time) a purported email that he sent to this Tribunal on 25 March 2024 (3:26:23 PM AEDT).[3] This is the abovementioned email forwarded to the email address comprising ‘[email protected]’. By agreement with the parties, the Tribunal then adjourned this second interlocutory hearing so that it could conduct its own enquiries about (1) whether the email address comprising ‘[email protected]’ existed; and (2) if so, whether any email from the Applicant had ever been received at that email address;

    [3] See Exhibit A2.

    ·on 7 May 2024, the results of those enquiries were published to the parties in these terms[4]:

    [4] Note to reader: I have included these enquiry results into these Reasons pursuant to the power contained in section 33(1)(c) of the AAT Act.

    ‘Dear Mr Corbett and Mr Hawker,

    Following receipt of the below email[5] from Mr Corbett during the resumed telephone hearing on Friday, 3 May 2024, I requested our IT team to locate the any email sent from Mr Corbett sent to ‘[email protected]’ on 25 March 2024. As mentioned at the most recent telephone hearing, Mr Corbett contend that he sent the email appearing in his below email[6]……

    [5] That is, the email appearing at Exhibit A2.

    [6] That is the email appearing at Exhibit A2.

    The IT team have come back with the following:

    -    the email address ‘[email protected]’ DOES NOT exist;

    -    the only generic active email addresses with the word ‘enquiries’ are those which can be seen in the attachments ‘Active email address_General reviews_2.png’ and ‘Active email addresses_AAT_1.png’. As it can be seen there is no active email address with the nomenclature ‘[email protected]’; and

    -    as the email address ‘[email protected]’ does not exist, if an email is sent to this particular email address, the sender gets a ‘Delivery failure’ email highlighting that there was some issue with the email address to which the email was sent. To prove this the IT team conducted a test and a copy of the ‘Delivery failure’ email address is attached.

    In light of the above findings, Senior Member Tavoularis has instructed me to bring the same to the attention of the parties. Should the parties wish to make any submissions on the above please do so by 5PM on Wednesday, 8 May 2024. Updated listings notices for the resumed hearing…. will be issued to the parties later today.

    If I can be of any further assistance, please do not hesitate to contact me.

    Yours sincerely,

    [Associate]’;

    ·to afford both parties procedural fairness it will be noted from the above-published search results that the Tribunal invited any submissions the parties wished to make in relation to those search results prior to re-convening the interlocutory hearing. On 8 May 2024 the Tribunal and the Applicant received certain supplementary submissions from the Respondent.[7] No submissions were forthcoming from the Applicant;

    [7] See Exhibit R3.

    ·on 13 May 2024, the Applicant was afforded a further opportunity to read and acquaint himself with the results of the Tribunal’s enquiries as quoted above. The Applicant was taken to page 7 of the Tender Bundle[8] and, in particular, the email address recorded therein comprising: ‘[email protected]’. The Applicant’s position then devolved into the following:

    o

    he confirmed that he had seen this information page[9] contemporaneous with his signed acknowledgement of receipt of delegate’s decision on

    
    

    18 March 2024;[10]

    obut that his position now was that although he read this email address, he did not understand it or, more generally, that although he could read he was not capable of understanding what he did read;

    oconsequent upon that purported inability to understand what he was reading, he made the now-purported telephone call to this Tribunal’s Registry during which he claims he was told to forward his application to the non-existent email address comprising: ‘[email protected]’;

    othat he wanted a further adjournment to source and locate telephone call logs from his telecommunications service provider which he contended (1) would demonstrate that he made the call to the Tribunal at which he was given the non-existent email address; and (2) would reveal the verbal content of that purported telephone call.

    [8] Exhibit R2, p 7.

    [9] Exhibit R2, p 7.

    [10] See Exhibit R1, fourth page.

    FINDINGS ABOUT THE EVIDENCE

15. I am satisfied that (1) the Applicant can comprehend what he reads otherwise he could not have responded to the questions appearing in his purported application; (2) there is no evidence of any telephone call the Applicant made (or any content of any such call) to the Tribunal during which he was provided with any non-existent email address; (3) the email address comprising ‘[email protected]’ is, and at all material times has been, a non-existent email address; and (4) the only email this Tribunal has received from the Applicant attaching any application was the email he forwarded on Tuesday, 23 April 2024 (14:13) to the current email address comprising ‘[email protected]’ despite his later claim of not being able to understand that which he was able to read.[11]

    [11] See Exhibit A1.

    CONCLUSION

16. The purported application for review offends section 500(6B) of the Act because it was not lodged within nine (9) days after the day on which the Applicant was notified of the delegate’s decision in accordance with section 501G(1) of the Act.

17. The Applicant is thus out of time. Section 500(6B) of the Act removes any scope for extending the subject time by this Tribunal. As a consequence, the Tribunal is compelled to dismiss the instant application for want of jurisdiction.

    DECISION

18. The Tribunal is therefore satisfied that the decision is not reviewable by the Tribunal and pursuant to section 42A(4) of the Administrative Appeals Tribunal Act1975 (Cth) dismisses this application for review.

19.     I certify that the preceding 18 (eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

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

Associate

Dated: 16 May 2024

Dates of hearing:	1,3 and 13 May 2024
Representation for Applicant:	Self-represented litigant
Solicitors for the Respondent:	Mr Matthew Hawker (Partner)
Sparke Helmore Lawyers

ANNEXURE A

AGREED EXHIBIT LIST

Exhibit A1: Purported email from the Applicant to the Tribunal dated 23 April 2024 (14:13) enclosing ‘Application for Review for Decision (Individual)’ dated 23 March 2024;

Exhibit A2: Copy of purported email from the Applicant to the Tribunal dated 3 May 2024 (3:55 PM) enclosing ‘Australian Government.pdf’ ( the .pdf file was password protected) dated 25 March 2024;

Exhibit R1: Respondent’s submissions on jurisdiction dated 29 April 2024;

Exhibit R2: Respondent’s Tender Bundle (pp 1-120).

Exhibit R3: Respondent’s supplementary submissions on jurisdiction dated 8 May 2024 (3:09 PM).