Finau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 521

Finau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 521 (16 March 2021)

Division:GENERAL DIVISION

File Number:          2021/1194

Re:Anthony Finau

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A. Nikolic AM CSC

Date of decision:  16 March 2021

Date of written reasons:         17 March 2021

Place:Melbourne

The Tribunal decides it does not have jurisdiction to consider Mr Finau’s application and dismisses it under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

[sgd]........................................................................

Senior Member A. Nikolic AM CSC

CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – migration – visa cancellation decision February 2020 – Applicant did not make representations seeking revocation of cancellation decision – review application lodged a year later in February 2021 – no discretion to extend time for representations – no reviewable decision – no jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

CASES

BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176
Sillars vMinister for Immigration, Citizenship, Migrant Services and MulticulturalAffairs [2020] FCA 1313

Stewart vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196

REASONS FOR DECISION

Senior Member A. Nikolic AM CSC

17 March 2021

INTRODUCTION

1. On 22 February 2021, the Applicant, Mr Finau, asked the Tribunal to review the mandatory cancellation of his visa a year earlier on 17 February 2020.

2. A Telephone Hearing was conducted on 16 March 2021 to consider the Tribunal’s jurisdiction. The Applicant was represented by his sister, Ms Maka Finau. The Respondent was represented by Mr Orchard of Sparke Helmore.

3. At the conclusion of the hearing I decided that the Tribunal does not have jurisdiction to consider Mr Finau’s application, gave ex tempore reasons, and dismissed the application under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). The Applicant requested written reasons. These are the reasons requested, consistent with the requirements of s 43(2B) of the AAT Act.

   BACKGROUND

4. The Applicant is a citizen of New Zealand, who previously held a Class TY Subclass 444 Special Category (Temporary) visa (the visa) since 23 October 2005.

5. On 2 August 2019, the Applicant was convicted of several violent offences and received a sentence of six years and six months imprisonment.[1] He continues to serve that sentence on a fulltime basis in a custodial institution.

   [1] Document Bundle, 22.

6. On 17 February 2020, the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Migration Act 1958 (Cth) (the Act). The delegate was satisfied that the Applicant had a ‘substantial criminal record’, having satisfied the requirement of being sentenced to a term of imprisonment of 12 months or more.[2] The cancellation decision was conveyed to the Applicant in a five‑page letter dated 17 February 2020, which was sent by email to the correctional centre at which he was detained.[3]  Several enclosures accompanied the letter, including:[4]

   [2] Migration Act 1958 (Cth), s 501(6)(a) read with s 501(7)(c).

   [3] Document Bundle, 1-5.

   [4] Ibid, 6-59.

   (a)an ‘Important Information sheet’;

   (b)a ‘Revocation Request Form’;

   (c)a ‘Personal Circumstances Form’;

   (d)forms for Advice by a migration agent/exempt person of providing immigration assistance’;

   (e)‘Appointment or withdrawal of an authorised recipient’;

   (f)information about legal aid assistance in Australia;

   (g)Direction 79;

   (h)provisions of the Act and Migration Regulations 1994; and

   (i)information relating to the Applicant’s 2019 convictions.

7. It was explained on pages 2 to 5 of the cancellation decision that the Applicant could make representations to have the cancellation decision revoked in accordance with reg 2.52 of the Migration Regulations 1994 (the Regulations).[5] It was stated that representations ‘must be made in accordance with the instructions outlined below’, which included a section entitled ‘Time-frame to make representations about revocation’. That section stated that the Applicant’s representations:

   MUST be received by the Department within 28 days after you are taken to have received this notice.

   As this notice was given to you by hand, you are taken to have received it when it was handed to you.[6]

   [5] Ibid, 4-5.

   [6] Ibid, 6.

8. On 27 February 2020, the Respondent emailed the correctional centre to enquire whether the Applicant had received the cancellation decision.[7] A Senior Correctional Officer confirmed on the same day that the Applicant had received the cancellation letter and accompanying ‘paperwork.’[8] An acknowledgment form dated 27 February 2020, signed by the Applicant, was attached to the email.[9] The Applicant’s signature was witnessed by a Senior Correctional Officer.

   [7] Ibid, 60.

   [8] Ibid, 62.

   [9] Ibid, 64.

9. On 20 and 21 October 2020, approximately eight months after the Applicant received the cancellation decision, two emails were sent from a prison Community Corrections Officer to the Respondent, seeking advice about the Applicant’s visa status.[10] One email stated:

   I spoke with Mr FINAU yesterday…and he is wishing to make representations to remain in Australia – how would he commence these representations? He related that he still holds a copy of the initial notification, however when he received the documentation the due date had passed so he did not respond at that time.[11]

   [10] Ibid, 65-70.

   [11] Ibid, 67-68.

10. In an email response on 21 October 2020, the Respondent advised the Community Corrections Officer that the Applicant ‘has not sought representation to revoke the cancellation of his visa’ (sic), and was liable for immigration detention under s 189 of the Act when released from prison.[12] Approximately four months later, on 16 February 2021, further email correspondence was exchanged between the Respondent and Community Corrections Officer in the following terms:[13]

    (a)The Community Corrections Officer sought ‘an update’ on the Applicant’s visa status, and stated the Applicant claimed to have ‘lodged an appeal for his cancellation through a private solicitor;’ 

    (b)The Respondent replied that no revocation requests had been received from the Applicant or anyone else on his behalf;

    (c)The Community Corrections Officer was asked to enquire if the Applicant could provide any further information about the claimed appeal through a private solicitor;

    (d)The Community Corrections Officer responded: ‘Mr Finau has not provided evidence for the submission and refuses to do so at this time.’[14]

    [12] Ibid, 68-69.

    [13] Ibid, 71-77.

    [14] Ibid, 74.

11. On 23 February 2021, the Applicant’s sister contacted the Respondent claiming that the Applicant had ‘misplaced the documents needed to appeal his Visa application’ (sic).[15] The Respondent replied on the same day stating:

    The Department cannot provide or disclose any information regarding the client’s case to unauthorised party (sic).

    In order to appoint you as an authorised recipient to act and receive correspondence on behalf of Mr FINAU…, please fill out and return the attached Form…as soon as possible.[16]

    [15] Ibid, 78.

    [16] Ibid, 79.

    LODGED MATERIALS

12. The Respondent lodged a Bundle of Documents numbering 80 pages, together with a four-page submission on jurisdiction.

    ISSUE

13. The issue is whether the Tribunal has jurisdiction to hear an application relating to a cancellation decision under s 501(3A) of the Act.

    SUBMISSIONS AND CONTENTIONS

    Applicant’s submissions

14. It was submitted on the Applicant’s behalf that he had no understanding of the cancellation decision in February 2020, and that his mental health had been impacted since his imprisonment. No additional evidence was provided in support of these claims.  

    Respondent’s submissions

15. The Respondent submitted that:

    (a)The Applicant had 28 days after receiving the cancellation decision on 27 February 2020 to make any representations in accordance with reg 2.52(2)(b) of the Regulations;

    (b)Given that the Applicant signed a form on 27 February 2020 acknowledging receipt of the cancellation decision and accompanying documents, he was required to make any representations by 26 March 2020 (sic);

    (c)The Applicant did not make any representations within 28 days of receiving the cancellation decision, and the power to consider revocation is now spent;[17]

    (d)Under s 500(4A)(c) of the Act, the Tribunal has no jurisdiction to review the mandatory cancellation of a visa under s 501(3A);

    (e)In circumstances where there is no decision under subsection 501CA(4) of the Act not to revoke a cancellation decision, the Tribunal does not have jurisdiction to consider the applicant’s application; and

    (f)The matter should be dismissed for want of jurisdiction, pursuant to s 42A(4) of the AAT Act.

    [17] BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 at [52]; Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1313, per Katzmann J at [71], [92].

    LEGISLATIVE FRAMEWORK

16. Section 25(1)(a) of the AAT Act and s 500 of the Act are the sources of the Tribunal’s jurisdiction to review certain decisions under the Act.

17. Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.

18. The ‘character test’ is defined in s 501(6) of the Act. It refers to a range of character matters that the Minister may have regard to in deciding whether to refuse or cancel a visa. Section 501(6)(a) of the Act provides:

    (6)      For the purposes of this section, a person does not pass the          character test if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or …

19. Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

20. Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Regulations, which relevantly states:

    (1) This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

    (2)       The representations must be made:

    (a)       … ; and

    (b) for a representation under paragraph 501CA(3)(b) of the Act—within 28 days after the person is given the notice and the particulars of relevant information under paragraph 501CA(3)(a) of the Act.

    (Emphasis added.)

21. Section 500(4A)(c) specifically excludes from the Tribunal’s jurisdiction any decision under s 501(3A) to cancel a visa.

    CAN THE TRIBUNAL REVIEW THIS APPLICATION?

22. The Tribunal is satisfied that the Applicant received the cancellation decision for the first time on 27 February 2020. This means the 28-day period stipulated for him to make revocation representations ended on 27 March 2020. The Tribunal is satisfied he had a meaningful opportunity to make representations in accordance with the invitation extended to him but did not do so. There is no evidence to the effect that the Applicant was unable to understand the cancellation decision or was otherwise precluded from making representations within the required timeframe.

23. If representations under s 501CA(4)(a) are not made within the prescribed 28-day time period, then the power to revoke a visa cancellation decision is not enlivened. As their Honours held in Stewart[18] at [42]:

    That analysis of the statutory scheme demonstrates the importance of the person’s ability under s 501CA(4) to have the cancellation reconsidered by the Minister.  Absent such reconsideration there is no opportunity in the statutory scheme for “another reason” to revoke the cancellation to be considered. 

    [18] Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 (Stewart), [11]; BDS20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1176 (Stewart J).

24. There is no power available to the Tribunal in the Act or Regulations to waive or extend the 28-day time period provided for in reg 2.52(2)(b).

    CONCLUSION – DISMISSAL FOR NO JURISDICTION

25. 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’.

26. The cancellation decision in this matter is outside the scope of review provided for by s 500 of the Act. As such, there is no reviewable decision before the Tribunal.

    DECISION

27. The Tribunal does not have jurisdiction to consider Mr Finau’s application and dismisses it under s 42A(4) of the AAT Act.

I certify that the preceding 27 (twenty seven) paragraphs are a true copy of the reasons for the decision of Senior Member A. Nikolic AM CSC

................................[sgd]....................................

Associate

Dated: 17 March 2021

Date of hearing:	16 March 2021
Applicant’s Advocate:	Ms Maka Finau
Advocate for the Respondent:	Mr C. Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers