Door and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 4966

Door and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4966 (15 October 2020)
Division: GENERAL DIVISION
File Number: 2020/6147
Re:Wol Magot Door
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

Decision
Tribunal:Senior Member Theodore Tavoularis
Date of Order: 15 October 2020
Date of Written Reasons: 4 December 2020
Place:Adelaide
Reasons for Order Made on 15 October 2020

The Tribunal is satisfied that it does not have jurisdiction to review the Application filed by the Applicant on 8 October 2020, and that the said application must be dismissed pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
................................[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)

CASES
Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor [2020] FCA 1699
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Immigration and Border Protection [2018] FCA 1643
REASONS FOR ORDER MADE ON 15 OCTOBER 2020

Senior Member Theodore Tavoularis
4 December 2020
Introduction

The following reasons arise from a request from the Applicant pursuant to an Order I made on 15 October 2020, dismissing the instant application numbered 2020/6147. A true and correct copy of that dismissal Order is attached to these Reasons and marked “Annexure A”. The primary basis of the dismissal derived from the reality that the Applicant’s application for review had been filed outside the time prescribed by s 500(6B) of the Migration Act 1958 (Cth) (“the Migration Act”).
This matter proceeded by way of a Case Management Telephone Directions Hearing before me on 15 October 2020. The Applicant was legally represented,[1] as was the Respondent.[2]
[1] Mr Christian Cifuentes, Principle Lawyer, Cifuentes Lawyers.
[2] Mr Tom Ellison, Senior Lawyer, Australian Government Solicitor.
BACKGROUND
The Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Migration Act on 5 February 2020. On 25 September 2020, the Respondent decided not to revoke the original visa cancellation decision pursuant to s 501CA(4) of the Migration Act. The Respondent’s non-revocation decision was emailed to the Applicant on 28 September 2020 under cover of a notification letter bearing that same date. Relevantly, the notification letter said the following:
“If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.”
[Emphasis in original]
During the abovementioned Case Management Telephone Directions Hearing, the Applicant’s representative confirmed that his client duly received both the non-revocation decision and accompanying notification letter by email on 28 September 2020.
On 8 October 2020, the Applicant applied to this Tribunal for review of the Respondent’s abovementioned non-revocation decision made on 25 September 2020. As recorded in the annexed Order, I dismissed the Applicant’s application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”). I did so on the basis that the application was brought outside the time prescribed by the s 500(6B) of the Migration Act.
On 18 November 2020, the Applicant’s representative contacted this Tribunal and requested written reasons for the abovementioned Order that I made on 15 October 2020.
RELEVANT LEGISLATION
Section 500(1)(ba) of the Migration Act facilitates applications to this Tribunal for review of a decision of a delegate of the Respondent made under s 501CA(4) of that Act. Section 500(6B) of the Migration Act has strict application to applications for the review of non‑revocation decisions made pursuant to s 501CA(4). Relevantly, s 500(6B) of the Migration Act provides as follows:
“If a decision under section 501of 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 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.”
The specific provisions in the AAT Act whose operation is neutralised by the operative effect of s 500(6B) of the Migration Act relevantly provide:
“29 Manner of applying for review
……..
Tribunal may extend time for making application
(7) The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8) The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9) Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:
(a) give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or
(b) require the applicant to give notice to those persons.
(10) If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.”
DISPOSITION
It is not in dispute that the Applicant was in the migration zone on 25 September 2020, at which time the Respondent made its non‑revocation decision pursuant to s 501CA(4) of the Migration Act. The consequence of that reality is that s 500(6B) of the Migration Act clearly applied to the application filed by the Applicant with this Tribunal on 8 October 2020.
It is also not in dispute that the Respondent has met the requirements stipulated in s 501G(1) of the Migration Act when notifying the Applicant of its non-revocation decision made pursuant to s 501CA(4) of that Act. No issue of non-compliance was propounded by the Applicant’s representative at the abovementioned Case Management Directions Hearing and, to the best of my knowledge of this file, no such issue has been raised since the Case Management Telephone Directions Hearing.
The Applicant’s acknowledgment of receipt of the Respondent’s non-revocation decision by email on 28 September 2020 meets, and is otherwise consistent with, the requirements of Regulations 2.55(3)(d) and 2.55(8) of the Migration Regulations 1994 (Cth). Those two regulations relevantly provide as follows:
“2.55(3) Subject to subregulation (3A), for a document to be mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the follow ways:
…
(d) by transmitting the document by:
…
(ii) email…
…
2.55(8) If the Minister gives a document to a person by transmitting it by fax, email or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”
Thus, there can be no argument with the finding that the Applicant validly and lawfully received the Respondent’s non-revocation decision on 28 September 2020.
Upon application of s 500(6B) of the Migration Act, the Applicant was compelled to file his application for review of that non-revocation decision by no later than 7 October 2020. During the Case Management Telephone Directions Hearing, the Applicant’s representative sought to explain the failure to file the application within the statutory nine days on two primary grounds:
(1) the Applicant was, at the time of his receipt of the non-revocation decision on 28 September 2020, in criminal custody at the Mobilong facility in South Australia; and
(2) as a consequence, the Applicant experienced delays in his capacity to communicate with “… people that are supporting him…” and to whom the Applicant could “… give instructions”.
While the general tenor of these submissions may be accepted, it is plain that the period of time within which an application for review must be filed pursuant to s 500(6B) is absolute. The Tribunal has no scope or power to extend this time.[3] It is also plain that s 500(6B) expressly excludes the application of the Tribunal’s general power to extend time pursuant to subsections 29(7), (8), (9) and (10) of the AAT Act.
[3] See Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699 at [12], where Her Honour Judge Jagot cited Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; Brown v Minister for Immigration and Border Protection [2018] FCA 1643.
In the instant case, the Applicant filed his application on 8 October 2020, being one day after expiry of the prescribed nine day time period in s 500(6B). While submissions put on behalf of the Applicant relating to the adverse impact of strictures as to time and a capacity to communicate and/or furnish instructions may be taken at face value, the stark reality is that this Tribunal did not have jurisdiction to either entertain or determine the application filed on 8 October 2020. By only the one day, the application was filed outside the nine day time period mandated by s 500(6B) of the Migration Act.
Accordingly, I was bound to enforce the relevant statutorily mandated time period. “This time period is absolute and cannot be extended.”[4] I therefore dismissed the instant application numbered 2020/6147 in the terms appearing in the attached Order made on 15 October 2020.
[4] Ibid, paragraph [13].
CONCLUSION
While this harsh outcome is clearly a matter of regret, it does not provide an imprimatur for this Tribunal to exceed its jurisdictional limits where the Applicant’s non-compliance with s 500(6B) is plain and otherwise incapable of subsequent cure.

I certify that the preceding 17 (seventeen) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..........................[SGD].................................................
Associate: 4 December 2020
Date of hearing:  15 October 2020
Representative of the Applicant:       Mr Christian Cifuentes (Principal Lawyer)
Solicitors for the Applicant:                Cifuentes Lawyers
Representative of the Respondent:    Mr Tom Ellison (Senior Lawyer)
Solicitors for the Applicant:                Australian Government Solicitor
“Annexure A”

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2020/6147

General Division )
Re: Wol Magot Door Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent
ORDER
TRIBUNAL:   Senior Member Theodore Tavoularis
DATE:            15 October 2020
PLACE:         Adelaide
The Applicant has lodged an application for a review of a decision.
The Tribunal is satisfied that the decision is not reviewable by the Tribunal.
Pursuant to subsection 42A(4) of the Administrative Appeals Tribunal Act 1975, the Tribunal dismisses the application.
...............................[sgd]..........................
Senior Member Theodore Tavoularis