FEYISA EGGU and MINISTER FOR IMMIGRATION AND CITIZENSHIP
[2010] AATA 1003
•9 December 2010
CATCHWORDS – IMMIGRATION – VISA – CANCELLATION – PRACTICE AND PROCEDURE – applicant in migration zone – consideration of validity of expedited scheme of review – outside nine day time limit for lodgement of application for review – no power to extend time – application dismissed.
PRACTICE AND PROCEDURE – no prescribed fee paid on lodgement of application – would not have been payable had application been lodged in time but would have been payable if time could have been extended – application could not be taken to have been made.
Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW) [1988] FCA 339; (1988) 19 FCR 477
Doyle v Commissioner of Police [1999] NSWADT 84
Radio 2UE Sydney Pty Ltd and ors v Burns (EOD) [2005] NSWADTAP 69
Re Jonsson and Marine Council (No 2) [1990] AATA 192; (1990) 12 AAR 323
The Queen v Toohey; Ex Parte Northern Land Council [1981] HCA 74; (1981) 151 CLR 170
Aboriginal Land Rights (Northern Territory) Act 1976 s 50(1)(a)
Acts Interpretation Act 1901 ss 28A, 29(1) and (2)
Administrative Appeals Tribunal Act 1975 ss 25, 25(1), (3), (4), (6), (6), (7), (8) and (9), 27, 29A, 33(1), 33(1)9c), 37, 37(1AB), 38, 38A, 40(1A)(a) and (b), 40(5), 42A(1), (2), (4) and (5), 43(2B), 70(1) and (2)(a)
Administrative Appeals Tribunal Amendment Act 1993 s 9
Evidence Act 1995 ss 3(1), 160, 161, 162, 163 and 187
Freedom of Information Act 1982 s 55
Migration Act 1958 ss 5(1), 200, 494A, 494B, 500, 500(2), (3), (5A) and (6A) to (8), 501(1)(b), 501(1)(b) 501(2), 501G(1) and (2),
Public Service Act 1999 s 7
Superannuation (Resolution of Complaints) Act 1993 ss 37-37G
Administrative Appeals Tribunal Regulations 1976 rr 19(1), 19(4), (5), (6) and (6A), 19(8)(a) and (8)(b), 19A, 19B
Administrative Appeals Tribunal Amendment Regulations 2010 (No 2)
Report of the Access to Justice Task Force: “A Strategic Framework for Access to Justice in the Federal Civil Justice System”
DECISION AND REASONS FOR DECISION [2010] AATA 1003
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2010/5149
GENERAL ADMINISTRATIVE DIVISION )
Re:FEYISA EGGU
Applicant
And:MINISTER FOR IMMIGRATION AND CITIZENSHIP
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Place: Melbourne
Date: 9 December 2010
Decision:The Tribunal decides that:
1.it does not have jurisdiction to review the decision of a delegate of the respondent dated 22 September 2010; and
2.dismisses the application lodged on 26 November 2010 seeking review of that decision.
S A FORGIE
Deputy President
REASONS FOR DECISION
Mr Feyisa Haji Eggu was born in Ethiopa but is now a citizen of New Zealand. He holds a Class TY Subclass 444 Special Category (Temporary) visa (the visa) which, unless cancelled, allows the holder to remain in Australia indefinitely. A delegate of the Minister for Immigration and Citizenship (Minister) cancelled the visa on 22 September 2010. She did so under s 501(2) of the Migration Act 1958 (Migration Act) on the basis that Mr Eggu had not satisfied her that he passed the character test. A letter notifying him of her decision was dated 22 September 2010 and sent to him by registered post.
On 26 November 2010, an application seeking review of the decision to cancel the visa was lodged in the Tribunal on Mr Eggu’s behalf. It was lodged outside the time period allowed by s 500(6B) of the Migration Act and without the payment of $100 required by the Administrative Appeals Tribunal Regulations 1976 (AAT Regulations) since 1 November 2010.
At the conclusion of the hearing, I decided that the Tribunal did not have jurisdiction to hear Mr Eggu’s application. He had not made it within the time allowed by s 500(6B) of the Migration Act and the Tribunal did not have power to extend that time. Generally, the Tribunal has power to extend the time allowed for lodgement. Its power is found in ss 29(7) to 29(10) of the Administrative Appeals Tribunal Act 1975 (AAT Act) but s 500(6B) of the Migration Act expressly provides that those provisions do not apply. Therefore, the Tribunal does not have the power to extend the time within which Mr Eggu could lodge his application. Even if it had the power to extend the time to 26 November 2010, I decided that his application would be taken not to have been made for he had not paid the prescribed fee. That is the effect of s 29A of the AAT Act. As my decision has significant consequences for Mr Eggu, I told both him and Ms Cumming that I would give them written reasons.
GENERAL STRUCTURE OF THE AAT ACT
Making an application
Section 25 of the AAT Act is fundamental to any consideration of the Tribunal’s jurisdiction to review a decision. It necessarily precedes any consideration of those who may apply to the Tribunal for review of a decision under s 27 for that notion assumes that the AAT Act or another enactment has provided that an application may be made to the Tribunal for the review of a decision. Section 25(1) provides:
“An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment.”
Section 25(4) provides the necessary corollary to this sub-section when it provides that the “... Tribunal has power to review any decision in respect of which application is made to it under any enactment.”
The remaining ten sub-sections of s 25 go on to refine the general proposition made in s 25(1) and to provide that an enactment may modify the operation of any particular provision of the AAT Act. Section 25(3) provides:
“Where an enactment makes provision in accordance with subsection (1), that enactment;
(a)shall specify the person or persons to whose decisions the provision applies;
(b)may be expressed to apply to all decisions of a person, or to a class of such decisions; and
(c)may specify conditions subject to which applications may be made.”
When is an application fee or a fee payable?
Section 70(1) and (2)(a) of the AAT Act provide that the Governor-General may make regulations, not inconsistent with the Act, prescribing fees payable in respect of applications to be made to the Tribunal. Fees are the subject of r 19 of the AAT Regulations. Regulation 19(1) provides that:
“Subject to this regulation, a fee of $777[[1]] (in this regulation called an application fee) is payable for lodging with the Tribunal of:
(a)an application for review of a decision, other than a relevant taxation decision within the meaning of Part IIIA of the Act; or
(b)an application under subsection 28(1AC) of the Act; or
(c)an application under subsection 62(2) of the Freedom of Information Act 1982;
other than an application for review of a prescribed decision.”[2]
[1] Regulation 19A provides that, on each biannual anniversary of 1 July 2010, this fee is increased in accordance with r 19B.
[2] Regulation 19AA prescribes fees in relation to relevant taxation decisions within the meaning of Part IIIA of the AAT Act.
A “prescribed decision” is a decision specified in Schedule 3 to the AAT Regulations or a decision reviewable under s 55 of the Freedom of Information Act 1982 (FOI Act), being a decision that relates to a document that relates to a decision specified in Schedule 3.[3] Among the decisions specified in Schedule 3 are those made under the family assistance law and the social security law. Other examples of decisions specified in Schedule 3 are those made under the First Home Owners Act 1983, the Safety, Rehabilitation and Compensation Act 1988, the Veterans’ Entitlements Act 1986 and Part III of the Disability Services Act 1986.
[3] If a request were made under the FOI Act for access to a document that related to a decision specified in Schedule 3, the decision made in response to that request would be reviewable under s 55 of the FOI Act and would itself be a prescribed decision. If the request were made for access to a document that did not relate to one of the specified decisions, it would not be a prescribed decision even though it too would be reviewable under s 55 of the FOI Act.
As the Migration Act is not named in Schedule 3, decisions made under it are not prescribed decisions. An application made for review of a decision made under it would seem to come squarely within r 19(1)(a) and attract the application fee. If it is payable, then it must be paid before lodgement of the application for review.[4]
[4] AAT Regulations, r 19(4)
Regulations 19(5), (6) and (6A) qualify when the application fee is payable. If two or more applications relate to the same applicant and may, in the opinion of the Registrar, District Registrar or Deputy Registrar, be conveniently heard before the Tribunal at the same time, the Registrar and others may order that only one fee is payable for those applications. That is the effect of r 19(5).
Regulation 19(6)(a) and (b) are more pertinent in this case and they provide:
“A fee of $100 is payable instead of an application fee if:
(a)the person liable to pay the application fee has been granted legal aid, under a legal aid scheme or service established under Commonwealth, State or Territory law or approved by the Attorney-General, for the matter to which the application fee relates; or
(b)the person liable to pay the application fee is:
(i)…
(ii)…
(iii)an inmate of a prison or is otherwise lawfully detained in a public institution; or
(iv)…
(v)…
(vi) …”
Regulation 19(6A) is the third qualification of the provisions prescribing when an application fee is payable. It gives the Registrar, a District Registrar or a Deputy Registrar power to order that a fee of $100 is payable rather than the application fee if he or she considers that payment of the application fee would cause financial hardship to the person. In making that decision, the Registrar and others must have regard to the person’s income, day-to-day living expenses, liabilities and assets.
When is an application fee or a fee refundable?
Regulations 19(7), (8) and (9) provide for the refund of an application fee or a fee mentioned in rr 19(6) or (6A).[5] If it is not payable, the person who has paid it is entitled to a refund.[6] If the person had paid an application fee but was liable to pay only the fee of $100, that person is entitled to a refund, which is referred to as the “refund amount”.[7] The amount of the refund amount is the difference between the application fee and $100. Where the Tribunal certifies that proceedings have terminated in a manner favourable to the applicant, that applicant is also entitled to a refund of an amount equalling the difference between the application fee and $100.[8]
[5] Regulation 19(7) refers to r 19(6AA) but I have read it as r 19(6A). There never has been a r 19(6AA) and a reference to r 19(6A) is consistent with the other provisions of r 19. See generally, Statutory Interpretation in Australia, DC Pearce and RS Geddes, 6th edition, 2006, LexiNexis, Australia at [2.24].
[6] AAT Regulations, r 19(7)
[7] AAT Regulations, r 19(8)(a)
[8] AAT Regulations, r 19(8)(b)
The consequence of failure to pay an application fee
Subject only to a qualification arising in circumstances in which a prescribed fee has been waived, an application to the Tribunal “… is not take to be made unless the prescribed fee (if any) in respect of the application is paid.” That is the effect of s 29A(1) of the AAT Act. The qualification is that, if the fee is waived under the AAT Regulations, the application is taken to be made at the time it was lodged. Waiver may take place either at the time of lodgement or at a later time.[9]
[9] AAT Act, s 29A(2)
Section 29A was inserted in the AAT Act in 1993[10] in response to a judgment of the majority in Angus Fire Armour Australia Pty Ltd v Collector of Customs (NSW)[11] that an application had been lodged with the Tribunal within the prescribed time as required by s 29(1)(d) even though it had been lodged without the payment of the prescribed fee.
[10] Administrative Appeals Tribunal Amendment Act 1993, s 9
[11] [1988] FCA 339; (1988) 19 FCR 477; Sweeney and Northrop JJ; Jenkinson J dissenting
The framework within which a review is conducted
Once an application has been made, the general powers of the Tribunal, the obligations of the parties and the framework within which the review is conducted are found in other provisions of the AAT Act. Provisions such as ss 37 and 38 of the AAT Act are directed to ensuring that, in matters other than those involving the review of security assessments,[12] the Tribunal and the parties are aware of the evidentiary basis on which the decision under review was made and the reasons why the decision was made. Subject to the AAT Act, the Tribunal procedure followed by the Tribunal in conducting its proceedings is within its own discretion.[13] Division 3 of Part IV provides the framework within which a member or officer the Tribunal or a person engaged under s 34H may conduct alternative dispute resolution in relation to an application. Section 43 is concerned with the Tribunal’s powers when making a decision and its obligation to give reasons for it.
[12] AAT Act, s 38A
[13] AAT Act, s 33(1)
The power to vary the framework
In most cases, the decisions in relation to the way in which and the time within which a person may apply to the Tribunal for review of a decision are regulated by the AAT Act. Section 25(6)(a) of that legislation provides, however, that an enactment providing for applications to be made to the Tribunal:
“… may also include provisions adding to, excluding or modifying the operation of any of the provisions of sections 27, 29, 32, 33 and 35 or of subsection 41(1) or 43(1) or (2) in relation to such applications.”[14]
Section 25(6)(b) goes on to provide that “those sections and subsections have effect subject to any provisions so included.”
[14] AAT Act, s 25(6)
THE SCHEME OF REVIEW OF A DECISION MADE UNDER S 501 IN RESPECT OF A PERSON IN THE MIGRATION ZONE
The Migration Act is an enactment of the sort referred to in s 25 of the AAT Act. It provides for applications to be made to the Tribunal. Of interest in this case is the provision it makes in s 501(1)(b) for applications to be made for review of decisions made under s 501 generally and, of interest in this case, of decisions under s 501(2) to cancel a person’s visa.
When such a decision is made, the Minister must give that person a written notice containing the information specified in s 501G(1). When the decision was made by a delegate of the Minister and the person to whom it relates is in the migration zone, the notice must be accompanied by two copies of the documents specified in s 501G(2). Those documents are documents in the delegate’s possession or control, were relevant to the making of the decision and do not contain non-disclosable information. “Non-disclosable information” is information or matter whose disclosure would, in the Minister’s opinion, be contrary to the national interest for a reason set out in paragraphs (a), (b) and (c) of the definition in s 5(1) of the Migration Act.
The Migration Act provides for an application to be made to the Tribunal for review of a decision made under s 501.[15] Section 500 prescribes those who may make that application.[16] In doing so, it is made in terms consistent with s 25(3) of the AAT Act which requires specification of the person in relation to whose decisions an application may be made, identification of those decisions or the class of decisions and conditions to which the applications may be subject.
[15] Migration Act, s 500(1)(b)
[16] Migration Act, ss 500(2) and (3)
Section 500 then goes on to modify the operation of several provisions of the AAT Act in relation to applications that are made to the Tribunal. It provides that s 23B of the AAT Act does not apply in relation to a proceeding for review of a decision made under ss 200 or 501.[17] That section provides for matters to which the President must have regard in constituting the Tribunal for the purpose of a particular proceeding. In its place, is s 500(5) of the Migration Act specifying the matters to which the President must have regard when constituting the Tribunal for the purposes of a proceeding for review of a decision made under ss 200 or 501.
[17] Migration Act, s 500(5A)
Sections 500(6A) to (8) set out a particular scheme of review for those persons who are in the migration zone and who are entitled to apply for review of a decision made under s 501. The “migration zone” includes the Australian States and Territories.[18] Beginning with s 500(6A), it modifies s 28 of the AAT Act by providing that it does not apply if a decision under s 501 relates to a person in the migration zone. In broad terms, s 28 provides that, unless he or she has already been given such a statement, a person affected by a decision in respect of which an application may be made to the Tribunal for review, is entitled to ask the decision-maker for a statement of reasons for that decision.
[18] Migration Act, s 5(1)
The following table summarises the scheme of review if the decision relates to a person in the migration zone together with the provisions of the AAT Act that it modifies or makes provision in accordance with:
| Migration Act | Step in review process | AAT Act | Usual step in review process modified by Migration Act |
| s 500(6B) | Must lodge application for review “… within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1) …” Sections 29(1)(d), (7), (8), (9) and (10) of the AAT Act do not apply. | s 29(1)(d) s 29(7), (8), (9) and (10) | Lodgement required within prescribed time (28 days). The Tribunal may extend the time for making an application if the person makes a written application and it is reasonable to do so. |
| s 500(6C) | Application for review must be accompanied by either the original or a copy of the document notifying the decision and one of the sets of documents given to the person under s 501G(2). | s 25(3)(c) (makes provision for conditions) | Where an enactment provides that an application may be made to the Tribunal, that enactment may specify conditions subject to which applications may be made. |
| s 500(6E) | The Registrar and others must notify the Minister of the decision within the period and in the manner specified in regulations made under the Migration Act. Section 29(11) of the AAT Act does not apply. | s 29(11) | The Registrar and others shall cause notice in writing of an application for review (prepared in accordance with the prescribed form) to be given to the decision-maker. |
| s 500(6F) s 500(6D) | Within 14 days of notification of the application, the Minister must lodge two copies of every document in his or her possession or control, that was relevant to the making of the decision and contains non-disclosable information. Section 37 of the AAT Act does not apply. | s 37 | In summary, the decision-maker must lodge within 28 days of receiving notice of the application, a statement of reasons for the decision and all documents in his or her possession or control that are relevant to the review. The obligation is subject to qualifications set out in s 37. The President may modify the obligation. |
| s 500(6G) | The Tribunal must not hold a hearing (other than a directions hearing) and must not make a decision under s 43 of the AAT Act until at least 14 days after the Minister was notified the application for review was made. | s 43 | For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions conferred by a relevant enactment on the decision-maker and shall make a written decision affirming or varying the decision under review or setting it aside and either substituting a decision or remitting it to the decision-maker for reconsideration in accordance with any directions or recommendations. |
| s 500(6H) | The Tribunal must not have regard to any information presented orally in support of the person’s case unless the information was set out in a written statement given to the Minister at least two business days[19] before the Tribunal holds a hearing other than a directions hearing in relation to the decision under review. | s 39 | Subject to confidentiality orders under s 35 and public interest certificates issued by the Commonwealth or a State Attorney-General under ss 36 or 36B, the Tribunal shall ensure that every party to a proceeding is given a reasonable opportunity to present his or her case as well as to inspect documents to which the Tribunal proposes to have regard. |
| s 500(6J) | The Tribunal must not have regard to any document submitted in support of the person’s case unless a copy of the document was given to the Minister at least two business days before the Tribunal holds a hearing other than a directions hearing in relation to the decision under review. This does not apply to documents given to the person under ss 501G(2) (documents given with notice of decision) or 500(6F) (relating to non-disclosable information). | s 39 | Subject to confidentiality orders under s 35 and public interest certificates issued by the Commonwealth or a State Attorney-General under ss 36 or 36B, the Tribunal shall ensure that every party to a proceeding is given a reasonable opportunity to present his or her case as well as to inspect documents to which the Tribunal proposes to have regard. |
| s 500(6L) | If the Tribunal has not made a decision under ss 42A, 42B, 42C or 43 of the AAT Act within a period of 84 days from the day on which the person was notified of the decision under review in accordance with s 501G(1), the Tribunal is taken to have affirmed the decision under review. | s 42A | Gives the Tribunal power to dismiss an application if the parties consent,[20] the applicant fails to appear,[21] the decision is not reviewable,[22] or the applicant fails to proceed with the application or to comply with the Tribunal’s direction.[23] |
[19] The term “business day” is defined in s 500(8) to mean a day that is not a Saturday, Sunday, public holiday in the Australian Capital Territory or a public holiday in the place concerned.
[20] AAT Act, s 42A(1)
[21] AAT Act, s 42A(2)(a)
[22] AAT Act, s 42A(4)
[23] AAT Act, s 42A(5)(a) and (b)
CONSIDERATION
Validity of some provisions of the expedited review procedures in the Migration Act: can the Tribunal consider the issue
Although Victorian Legal Aid assisted Mr Eggu in lodging his application, he has not been granted legal aid in relation to it. In effect, he was unrepresented at the hearing. That fact makes me even more conscious of my obligation to act according to law. Mr Eggu is not in a position to frame his arguments on the law and it is the law that determines this matter. I have, of course, had the assistance of Ms Cumming on behalf of the Minister but, as Mr Eggu is not well placed to present his own case, I paid particular attention to the provisions of the expedited review procedures established by Parliament in relation to decisions made under ss 200 and 501 in relation to persons in the migration zone.
When I do that, it seems to me that at least two are not consistent with s 25(6) of the AAT Act and question their validity. I cannot determine that they are invalid for the Tribunal is not a court and so cannot undertake a task that would require the exercise of judicial power. In the course of ascertaining the law, though, I can form a view on that subject. I must act according to law in working out what is the correct decision or, if more than one is correct, the range of correct decisions. A decision is not a correct decision if made on the basis of an invalid law. I discussed these issues more fully in Re Jonsson and Marine Council (No 2)[24] (Jonsson) together with a number of previous authorities and adopt my reasons.
[24] [1990] AATA 192; (1990) 12 AAR 323
Since then, there have been other cases that support the view that I reached in that case have come to my attention. They include The Queen v Toohey; Ex Parte Northern Land Council,[25] in which the High Court considered whether the Northern Land Council was entitled to challenge the validity of Planning Regulations made under the Planning Act 1979 (NT) on the basis that they had been made for a purpose which was not a planning, or a town planning, purpose. If the Planning Regulations were invalid in specifying certain land as a “town”, the Aboriginal Land Commissioner (Commissioner) would be prevented from claiming that land as it would not be unalienated Crown land and so not come within the scope of his function under s 50(1)(a) of the Aboriginal Land Rights (Northern Territory) Act 1976. The Commissioner had decided that the land was not available to be claimed as it was a town and so not available to be claimed.
[25] [1981] HCA 74; (1981) 151 CLR 170; Gibbs CJ, Stephen, Mason, Aickin and Wilson JJ; Murphy JJ dissenting
The majority decided that a challenge to the validity of the Planning Regulations could be mounted on the basis either that they were invalid on their face or were in fact designed to defeat the traditional claims of Aboriginal claimants. In doing so, the majority decided that, as Gibbs CJ expressed it:
“… It was necessary for the Commissioner to decide on the validity of the Planning Regulations to enable himself to determine whether the application was made in respect of land to which s 50(1)(a) of the Land Rights Act applied. If the regulations were invalid, there was no justification for him to fail to continue to exercise his function under s 50(1)(a).”[26]
The Commissioner was a Judge of, at the time, the Federal Court. That fact was irrelevant in determining the path he should have taken for the majority came to that view “… doubt[ing] whether the Commissioner was a judicial tribunal …” within the meaning of O 55 r 30 of the High Court Rules providing for a writ of mandamus to a judicial tribunal.[27]
[26] [1981] HCA 74; (1981) 151 CLR 170 at [23];193
[27] [1981] HCA 74; (1981) 151 CLR 170 at [23]; 193
I note that O’Connor DCJ, President of the New South Wales Administrative Decisions Tribunal (ADT), considered whether the ADT could consider the validity of delegated legislation. He did so in Doyle v Commissioner of Police[28] and concluded, consistently with my reasons in Jonsson, that it could do so. In Radio 2UE Sydney Pty Ltd and ors v Burns (EOD),[29] O’Connor DCJ went further and decided that the ADT could consider whether legislation conferring jurisdiction upon it was constitutional.
Validity of some provisions of the expedited review procedures in the Migration Act: provisions causing me concern
[28] [1999] NSWADT 84 at [19]- [35]
[29] [2005] NSWADTAP 69 at [77]-[96]
I will give two examples of provisions that cause me concern. The first is s 500(6D) of the Migration Act, which provides that s 37 of the AAT Act does not apply. The effect of s 37 is set out in the Table above. It is not a section to which reference is made in s 25(6) of the AAT Act as a section whose provisions may be added to, excluded or modified in their operation. Section 37(1AB) does provide for variation of the obligation to lodge a statement of reasons referred to in s 37(1)(a). It does so by giving the President power to direct that a person lodge the reasons for decision rather than the statement. Section 37(1AB) is expressed to be “Subject to any other Act” and it is difficult to reconcile that qualification with the approach taken in s 25(6). The specification of a limited number of sections whose operation can be added to, excluded or modified, suggests that the framework of review provided by sections not specified is to be a constant feature in any review conducted by the Tribunal.
The second example is found in s 500(5) of the Migration Act specifying the matters to which the President must have regard when constituting the Tribunal for the purposes of a proceeding for review of a decision made under ss 200 or 501. Section 500(5A) provides that ss 23 and 23B of the AAT Act do not apply. Again, those sections are not specified in s 25(6) as sections whose provisions may be added to, excluded or modified.
The third example arises from s 39 of the AAT Act which again is a section to which s 25(6) makes no reference. I have referred to it in the Table above against the reference to s 500(6H). Arguably, s 500(6H) fetters the way in which the Tribunal may choose to give every party a reasonable opportunity to present a case.
Even if ss 500(6D), (5A) and (6H) are not validly made, the scheme of review provided in relation to visa cancellations when a person is in the migration zone is not invalid in its entirety. In particular, the provisions relating to the time within which an application must be lodged and whether or not that time may be extended are the subject of s 29 of the AAT Act. That is a section specified in s 25(6) and I have no basis on which to question its validity.
The day from which the nine day time limit is calculated
The period within which Mr Eggu was permitted to lodge his application was the period of “9 days after the day on which … [he] was notified of the decision in accordance with s 501G(1)”. Based on the material that was lodged with Mr Eggu’s application, I am satisfied that the Minister notified Mr Eggu of the decision in accordance with s 501G(1). The letter addressed to Mr Eggu states that it was sent to him by registered post at the Margoneet Correctional Centre. He clearly received it and acknowledges that he did so but cannot recall the date on which he did so.
Although s 501G(1) specifies the content of the notice that must be given to the person, it does not specify the way in which the notice must be given. In particular, it does not specify that the Minister must do so by means of any of the ways specified in s 494B of the Migration Act. That means that s 494A comes into play. It provides that the “… the Minister may give the documents to the person by any method that he or she considers appropriate …” and that the method chosen may be one of those specified in s 494B. Three of the methods specified provide for the notice to be given by hand. One provides for its transmission by fax, e-mail or other electronic means. None of the four methods is applicable in this case. The fifth and final method is set out in s 494B(4). It consists of:
“… the Minister dating the document, and then dispatching it:
(a)within 3 working days (in the place of dispatch) of the date of the document; and
(b)by prepaid post or by other prepaid means; and
(c)to:
(i)the last address for service provided to the Minister by the recipient for the purposes of receiving documents; or
(ii)the last residential or business address provided to the Minister by the recipient for the purposes of receiving documents.”
If the Minister had given Mr Eggu notice of the decision in this way, the effect of s 494C(4) would have been that he would have been taken to have received it seven working days after 22 September 2010 as that was the date on the letter and it was dispatched to and from a place in Australia.
On the evidence I had at the time of the hearing, I had no basis on which I was able to find that the notice was dispatched within three working days of 22 September 2010. All that I can find is that the person who wrote “BY REGISTERED MAIL” on top of the letter intended that it be dispatched in that way. As I am not satisfied that the notice was sent to Mr Eggu by one of the ways specified in s 494, the deeming provisions of s 494C do not come into operation.
Section 494A does not limit the means of giving notice to those in s 494B. Therefore, I have turned to the Acts Interpretation Act 1901 (AI Act) for assistance. It sets out ways in which notice may be given. Section 28A(1) provides that:
“For the purposes of any Act that requires or permits a document to be served on a person, whether the expression ‘serve’, ‘give’ or ‘send’ or any other expression is used, then, unless the contrary intention appears, the document may be served:
(a)on a natural person:
(i)by delivering it to the person naturally; or
(ii)by leaving it at, or by sending it by pre-paid post to, the address of the place of residence or business of the person last known to the person serving the document; …
(b)…
Where a document has been given by prepaying and posting it to a person as a letter, s 29(1) of the AI Act provides that its service, and so the fact that it has been given to the person, “shall be deemed to be effected at the time at which the letter would be delivered in the ordinary course of post.”
In order to be able to rely on the deeming provision in s 29(1), I need to be able to work out when the letter was posted by prepaid mail. If, the letter was sent by registered mail, proof of its being sent in that way would be available. Where it is sent by ordinary mail, that proof can be given through the person who posted it or who was responsible for its being posted.
I do not have the relevant evidence but I can rely on a presumption that I find in s 163 of the Evidence Act 1995 (Evidence Act).[30] Section 163 applies to proceedings in the Tribunal for it is one of the provisions named in s 5 of the Evidence Act as applying in an “Australian court”. Clearly, the Tribunal is not a court and nor is it required to apply the laws of evidence.[31] It is, however, “a … body authorised by an Australian law … to hear, receive and examine evidence”[32] and so is an “Australian court”. That conclusion follows from the fact that the Tribunal “may … take evidence on oath or affirmation”[33], may summon a person to give evidence[34] and must examine that evidence if it is to meet its obligation, when giving written reasons, to “… include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.”[35]
[30] AI Act, s 29(2)
[31] AAT Act, s 33(1)(c)
[32] Evidence Act, s 3(1), Dictionary, Part 1
[33] AAT Act, s 40(5)
[34] AAT Act, ss 40(1A)(a) and (b)
[35] AAT Act, s 43(2B)
Section 163 of the Evidence Act provides:
“(1) A letter from a Commonwealth agency addressed to a person at a specified address is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) to have been sent by prepaid post to that address on the fifth business day after the date (if any) that, because of its placement on the letter or otherwise, purports to be the date on which the letter was prepared.
(2) In this section:
business day means a day that is not:
(a) a Saturday or a Sunday; or
(b) a public holiday or bank holiday in the place in which the letter was prepared.
letter means any form of written communication that is directed to a particular person or address, and includes:
(a) any standard postal article within the meaning of the Australian Postal Corporation Act 1989; and
(b) any envelope, packet, parcel, container or wrapper containing such a communication; and
(c) any unenclosed written communication that is directed to a particular person or address.
Note 1: The NSW Act has no equivalent provision for section 163.
Note 2: Section 5 extends the operation of this section to proceedings in all Australian courts.”
The Minister is taken to be a “Commonwealth agency”[36] as is the Department of Immigration and Citizenship (Department), which sent the letter to Mr Eggu. The Department is an Agency within the meaning of the Public Service Act 1999 and so also a Commonwealth agency.[37] It sent the letter to Mr Eggu advising him of the cancellation decision. Application of s 163 would lead to the presumption that the Department sent the letter that was the notice of the decision to Mr Eggu on 29 September 2010 for that is the fifth business day after the date on the letter i.e. 22 September 2010.
[36] Evidence Act, s 3(1), Dictionary, Part 1
[37] Evidence Act, s 3(1), Dictionary, Part 1 and see also Public Service Act 1999, s 7
The day on which the letter is presumed to have been sent by prepaid post is just that; presumed to have been sent and not presumed to have been received. Any doubt that this is the correct interpretation is dispelled by reference to ss 160 and 162 of the Evidence Act. Section 160(1) presumes the day on which a postal article sent by prepaid post and addressed to a person in Australia or an external Territory “was received at that address”. Section 162(1) presumes the time at which a record of a message transmitted by means of a lettergram or telegram “was received by the person to whom it was addressed”. Neither applies to the Tribunal but both appear with s 163 in Division 3 of Part 4.3 of Chapter 4 of the Evidence Act. The difference in wording between s 163 on the one hand and ss 160(1) and 162(1) on the other supports my conclusion that the presumption in s 163(1) refers only to the sending, and not to the receipt, of the letter. My conclusion is further supported by the final provision in the Division: s 161. Sections 161(1)(a), (b) and (c) provide for a presumption to be made regarding the fact that electronic communications (other than those referred to in s 162) are deemed to have been “sent or made” and the time at which they were “sent or made”. By way of contrast ss 161(1)(d) and (e) provide for a presumption to be made regarding the fact that those electronic communications were “received” and the time at which they were “received”.
In order to work out the day on which Mr Eggu would have been given the notice, I have to go back to s 29(1) of the AI Act. That tells me that he is deemed to have been given the letter on the day in which it “would have been delivered in the ordinary course of post”. Again, I do not have any evidence when that would have been but, again, I can rely on a presumption. That presumption is found in s 160(1) of the Evidence Act. It provides:
“(1) It is presumed (unless evidence sufficient to raise doubt about the presumption is adduced) that a postal article sent by prepaid post addressed to a person at a specified address in Australia or in an external Territory was received at that address on the fourth working day after having been posted.
(2)This section does not apply if:
(a)the proceeding relates to a contract; and
(b)all the parties to the proceeding are parties to the contract; and
(c)subsection (1) is inconsistent with a term of the contract.
(3)In this section:
working day means a day that is not:
(a)a Saturday or a Sunday; or
(b)a public holiday or a bank holiday in the place to which the postal article was addressed.”
Section 160 applies to the Tribunal because s 182(4A) provides:
“Section 160 applies to postal articles sent by a Commonwealth agency as if that section applied to the extent provided for in section 5.”
The “extent provide for in section 5” is determined by reference to the proceedings being in an “Australian court”. As the Tribunal is an “Australian court” and as the Department is a “Commonwealth agency”, s 160 applies to proceedings in the Tribunal.
Applying the presumption in this case, means that I start with the date on which I presumed the Department to have sent the letter to Mr Eggu i.e. 29 September 2010. Under s 160(1), Mr Eggu is deemed to have received the letter on 5 October 2010 being the fourth working day after 29 September 2010.
During the hearing, Mr Eggu suggested that he might not have received the letter until some time in October 2010. His application for review does not support his current thinking for, on 22 November 2010, he wrote “?.9.2010” when asked to write the “Date you received notice of the decision”. That was some time after he had received it. His evidence does not raise any doubt in my mind about the presumption and I have presumed that he received the letter on 5 October 2010. That is the day on which he is deemed to have been notified of the decision.
Lodgement of the application
Under s 500(6B), Mr Eggu had to lodge his application with the Tribunal “within 9 days after the date on which he was notified of the decision in accordance with subsection 501G(1)” i.e. 5 October 2010. The first of those nine days falls on 6 October for the day of notification is not counted in the nine days.[38] The ninth day after 5 October 2010 is 14 October 2010. That was the last day on which Mr Eggu could apply for review of the decision to cancel his visa.
[38] AI Act, s 36(1)
The Tribunal has no power to extend the nine day time limit. The power that it would normally have under s 29(7) to (10) of the AAT Act is expressly excluded by s 500(6B) of the Migration Act. Section 29 is a provision that may be excluded by a provision in an enactment such as the Migration Act.[39]
[39] AAT Act, s 25(6) and see [17] above
The consequence of Mr Eggu’s being late in lodging his application is that the Tribunal has no power (or jurisdiction) to review the decision to cancel his visa made by a delegate of the Minister. It has no discretion in the matter.
Payment of a fee
Had Mr Eggu lodged his application for review within the nine day period allowed by s 500(6B), he would not have been liable to pay any fee at all. He would have lodged his application in October 2010 and so before the Administrative Appeals Tribunal Amendment Regulations 2010 (No 2) came into operation on 1 November 2010. Before that day, no prescribed fee of any sort, be it an application fee or a fee other than an application fee was payable by a person coming within r 19(6)(b)(i)-(vi) or 19(6)(c),[40]
[40] See [11]-[12] above and [52] below
Had I had the power to extend the time within which Mr Eggu could have lodged an application for review to 26 November 2010 (and I have found that I do not), he would have been required to pay the fee. His application was lodged after 1 November 2010. Even if I had power to extend the time, I do not have power under s 29(7) of the AAT Act to deem his application to have been lodged on a day before it was actually lodged.
Even if Mr Eggu had been within time when he lodged his application on 26 November 2010, his application would be taken not to have been made. That would have followed from the fact that he was required to pay $100 as a fee because he is an inmate of a prison. It is clear from the AAT Regulations and the fee structure they provide for, that there is no power to waive the $100 fee. That is to say, the Tribunal has not been given any power to decide that no fee at all is payable with the lodgement of the application. Even when the Registrar or a District Registrar or a Deputy Registrar decides that a person is in financial hardship, the $100 fee still applies. A decision that a person is in financial hardship leads only to the outcome, provided for in r 19(6A), that a fee of $100 is payable rather than the application fee.
Understandably, Mr Eggu asked where he was expected to find $100 when he was in prison. There may well be many would be applicants who ask that question. Among them may be the holders of health care cards, a health benefit card, a pensioner concession card or a Commonwealth seniors health card,[41] a child under the age of 18 years[42] or in receipt of a youth allowance or an austudy payment[43] or any of the other persons designated in r 19(6). Like Mr Eggu, they may raise issues of affordability. These were issues that were raised by the Access to Justice Taskforce established by the Attorney-General in his Department. In September 2009, it issued its report entitled “A Strategic Framework for Access to Justice in the Federal Civil Justice System”.[44] They are issues that would appear to be among those underpinning the decision to abolish a number of fees previously imposed in relation to requests lodged under the FOI Act but whose expression does not lead to a similar outcome in relation to applications for review lodged in the Tribunal.
[41] AAT Regulations r 19(6)(b)(i)
[42] AAT Regulations r 19(6)(b)(iii)
[43] AAT Regulations r 19(6)(b)(v)
[44] Recommendation 12.4 of that Report recommends that the Attorney-General’s Department should convene a Federal Justice Roundtable comprising representatives from justice institutions including judges and court administrators, representatives from the legal profession, the legal assistance and community legal sectors, the broader community sector and major litigant groups (including social security, human rights and business representatives). Its functions would include “developing and considering reforms to promote a fair, simple, affordable and accessible federal civil justice system. This would include reforms to the federal courts, Commonwealth administrative tribunals, ADR, the legal profession and any other matters that would promote access to justice”.
The role of the Tribunal is not to make the law or change the law. That is the role of Parliament. The role of the Tribunal is to ascertain what the law is and to apply it to the facts that it finds on the evidence that is before it and according to the standard of proof it is required to apply in making those findings. In carrying out that role, it must not only apply the law but act according to law. It is not permitted to come to a decision because it thinks that it would be a just outcome. It is not permitted to come to a decision because it thinks that the decision under review was unfair, unreasonable or both. That is a role that Parliament has given a tribunal such as the Superannuation Complaints Tribunal[45] but it is not the role that it has given this Tribunal. Notions of justice or of fairness may have some relevance if Parliament has given the Tribunal a discretion to make one decision rather than another. Decisions regarding the Tribunal’s power or jurisdiction to hear an application and so its decisions on issues such as whether an application has been properly made within time and whether any prescribed fee has been paid are not decisions about which the Tribunal has a choice. There is only one correct decision that can be made on each of those issues. That is the situation in this case and I cannot be swayed from that path by any personal view I may, or may not, have regarding whether the outcome appeals, or does not appeal, to my personal view of what is just and what is not.
[45] Superannuation (Resolution of Complaints) Act 1993, ss 37-37G
For the reasons I have given, I decide that the Tribunal:
(1)does not have jurisdiction to review the decision of a delegate of the respondent dated 22 September 2010; and
(2)dismiss the application lodged on 26 November 2010 seeking review of that decision.
I certify that the fifty five paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ....................................................................
Leah Berardi Associate
Date of Hearing 9 December 2010
Date of Oral Decision 9 December 2010
Date of Written Decision and Reasons 14 December 2010Solicitor for the Applicant Unrepresented
Solicitor for the Respondent Ms Jan Cumming
Clayton Utz
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