Edwards and Minister for Immigration, Multicultural and Indigenous Affairs

[2004] AATA 889

Administrative

Appeals

Tribunal

 

DIRECTION AND REASONS FOR DIRECTION [2004] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2004/570

GENERAL ADMINISTRATIVE  DIVISION		)
Re		LIONEL BRUCE EDWARDS

Applicant

And MINISTER FOR IMMIGRATION, MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DIRECTION

Tribunal Deputy President Don Muller

Date24 August 2004

PlaceBrisbane

Decision

The Tribunal Directs that:

1. The notification of the Delegate of the Minister for Immigration and Multicultural and Indigenous Affairs, dated 21 June 2004, received by Lionel Bruce Edwards on 28 June 2004, of a decision to cancel the Special Category Visa, held by Lionel Bruce Edwards, was invalid;

2.  There is currently no valid decision for the Tribunal to review;  and

3.  This matter is dismissed.

................SIGNED........................

D.W. MULLER

DEPUTY PRESIDENT

CATCHWORDS

PRACTICE AND PROCEDURE – failure to notify visa holder of rights of review upon cancellation – notification invalid – no reviewable decision – application to review dismissed

Migration Act 1958: s.500(6B), 501G(1)

Administrative Appeals Tribunals Act 1975: s.29

REASONS FOR DIRECTION

Deputy President Don Muller        

1.      A Delegate of the Minister for Immigration, Multicultural and Indigenous Affairs purported to cancel the Special Category Visa held by Lionel Bruce Edwards.

2.      Upon application to the Tribunal by Mr. Edwards for review of the decision to cancel his visa, both parties raised preliminary points to be determined by a Directions Hearing.  They are:

i.Whether the notification of cancellation of the visa complied with the provisions of section 501G(1) of the Migration Act 1958 (the Act).  That is, whether or not the notification was valid.

ii.If the notification of cancellation of the visa was valid, whether Mr. Edwards applied to the Tribunal for review, within the time limited by section 500(6B) of the Act. That is, within nine days after the day on which Mr. Edwards was notified of the decision in accordance with s.501G(1).

3.      The following matters are not in dispute and the Tribunal finds as follows:

i.Mr. Edwards is currently midway through serving a seven year prison term as a result of being convicted of committing a serious criminal offence.

ii.Mr. Edwards is a citizen of New Zealand.  He holds a Special Category Visa which allows him to remain in Australia.

iii.A copy of a Notice of Intention to Cancel Visa under subsection 501(2) of the Act, dated 23 March 2004, was delivered to Mr. Edwards on 26 March 2004.

iv.Mr. Edwards replied to the Notice of Intention to Cancel Visa, on 6 April 2004.  He also included references and various certificates indicating that he had completed a number of educational and psychological courses.

v.On 21 June 2004, a Delegate of the Minister made a determination to cancel Mr. Edwards’ visa, pursuant to s.501(2) of the Act.  That is, Mr. Edwards did not pass the character test.

vi.A copy of the determination to cancel Mr. Edwards’ visa was handed to him by Josephine Smith, Adviser – Sentence Management, Department of Corrective Services, Queensland, on 28 June 20004.

vii.Upon receipt of a bundle of papers handed to him by Ms. Smith, Mr. Edwards signed an acknowledgement that he had been handed:

·The original of my NOTICE OF VISA CANCELLATION UNDER SUBSECTION 501(2) OF THE MIGRATION ACT 1958;

·A copy of the DECISION RECORD that sets out the reasons for the decision (other than non disclosable information);

·Two copies of EVERY DOCUMENT relevant to the making of the decision (other than non disclosable information);

·A copy of the “INFORMATION ABOUT REVIEW RIGHTS”

·A copy of the application form for AAT Review – “Administrative Appeals Tribunal Application for Review of Decision”.

viii.Ms. Smith did not check the papers she handed to Mr. Edwards.  She knew that they were from the Department of Immigration Multicultural and Indigenous Affairs, but she has no knowledge of their contents.

ix.Mr. Edwards read the papers and was thereby made aware that his visa had been cancelled.

x.On 14 July 2004, Mr. Edwards requested to speak to Robyn Hofmans, Correctional Counsellor at Woodford Prison.  He told her that he had received a letter several weeks previously which said that he was to be deported back to New Zealand at the termination of his custodial sentence.

xi.Mr. Edwards handed a bundle of documents to Ms. Hofmans.  He told her that the bundle he handed her contained all of the material which had been given to him by Ms. Smith.

xii.Ms. Hofmans could find no information about Mr. Edwards’ right of appeal among the documents.  She telephoned the Department on 14 July 2004 to enquire about the appeal process.  She was told by the Departmental officer about appeal rights to the AAT and was told that the papers would be sent to her.

xiii.When no appeal documents arrived Ms. Hofmans downloaded the application documents from the AAT web site.

xiv.An application for review of the decision to cancel Mr. Edwards’ visa was made to the Tribunal on 21 July 2004.

4. Section 500(6B) of the Act provides that if a decision under section 501 of the Act relates to a person in Mr. Edwards’ position, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s.501G(1). Section 500(6B) also modifies the Administrative Appeals Tribunal Act 1975 by providing that the usual rules contained in s.29 relating to a prescribed time of 28 days and extensions of time, do not apply in these cases.

5. Section 501G sets out the material which must be given to a person whose visa has been cancelled under s.501(2) (among others). In particular s.501G(1) provides:

“501G  Refusal or cancellation of visa – notification of decision

(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:

(a)refuse to grant a visa to a person;  or

(b)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) 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.”

6.      Mr. Edwards gave evidence to the Tribunal on affirmation.  He said:

·     He did not receive any information about his right of review, in the package handed to him by Ms. Smith.  He handed the total package which he had received, to Ms. Hofmans.  He did not know that he could appeal to the AAT until Ms. Hofmans found out for him.

·     Although he signed for the package he did not check the contents against the receipt before he took it away.

7.      Ms. Hofmans gave evidence by telephone.  She said: 

·     There was no information in the package handed to her by Mr. Edwards about review rights.

·     She had to contact the Department to find out what rights of review Mr. Edwards had.

·     Mr. Edwards did not seem to her to know what his rights of review were.

8.      Mr. Chand, advocate for the Minister, gave an assurance to the Tribunal, which the Tribunal accepts, that care is taken by Departmental officers to ensure that the notification package contains the information about the visa holder’s rights of review.

9.      I am satisfied that in this case neither Mr. Edwards nor Ms. Hofmans knew what rights of review were available to Mr. Edwards until Ms. Hofmans contacted the Department.  I find that there was an accidental omission of the material about rights of review in the notification of cancellation package relating to Mr. Edwards’ visa.

10.     Consequently, the notification was invalid.  There is therefore no reviewable decision before the Tribunal.

11.     The application is dismissed.

I certify that the 11 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller

Signed:         .....................................................................................
           C. O’Donovan, Associate

Date/s of Hearing  23 August 2004   
Date of Decision  24 August 2004
Applicant  Mr. Edwards, himself
Counsel for the Respondent     Mr. Chand
Solicitor for the Respondent     Clayton Utz Lawyers