Fisiatina Puafisi and Minister for Immigration and Citizenship

[2012] AATA 679

[2012] AATA 679

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/3669
Re	Fisiatina Puafisi
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Senior Member A K Britton
Date	21 September 2012
Date of written reasons	4 October 2012
Place	Sydney

The Tribunal does not have jurisdiction to hear the application.

........................................................................

Senior Member A K Britton

CATCHWORDS

MIGRATION – visa cancellation – no jurisdiction

LEGISLATION

Migration Act 1953 (Cth)
Migration Regulations 1994

REASONS FOR DECISION

Senior Member A K Britton

4 October 2012

EDITED EXTRACT OF TRANSCRIPT OF PROCEEDINGS

1. Mr Puafisi seeks review by the Administrative Appeals Tribunal of the decision made by the Minister for Immigration and Citizenship to cancel his Australian visa.  These reasons address a preliminary issue raised by the Minister, namely, whether (i) Mr Puafisi’s application for review was made out-of-time, and (ii) as a consequence, the Tribunal lacks power to review the decision to cancel his visa.

2. A person seeking to challenge a decision made by the Minister to cancel his or her visa must lodge an application for review with the AAT within nine days of being notified of that decision (s 500(6B) Migration Act 1958 (Cth)). By the operation of regulation 2.55 (7) of the Migration Regulations 1994 (the Regulations), a person is deemed to have received notice of the decision advising them that their visa has been cancelled (the notice), seven working days after the date of that notice, providing the document was given to them in accordance with regulation 2.55(3). Where the person can show that he or she received that document more than seven days after the date of the notice and there was a defect in the method of the giving of the notice vis-à-vis the Regulations, then the notice is taken to be received at the later date (regulation 2.55(8)).   

3. I must decide two issues: first, whether the notice of decision advising Mr Puafisi of the visa cancellation was received more than seven days after the date of the notice; second, if so, whether there was a defect in the method that notice was given to Mr Puafisi.

4. In this matter, there are a number of dates of significance. The date of the decision notifying Mr Puafisi of his visa cancellation was 27 July 2010.  By the operation of the Regulations, its deemed date of receipt was 7 August 2012, and therefore Mr Puafisi was required to file his application with the Tribunal by 16 August 2012.  He did not file his application until 23 August 2012. 

5. Mr Puafisi’s evidence about when he received notice of his visa cancellation lacked particulars.  He was unable to identify the date he received the notice. His evidence was to the effect that when he received the notice, he knew that “something was up” and that the notice was out-of-time.

6. He said that a number of days later – he was a little unclear – he was visited by a prison welfare officer who assisted him to complete an application for review to the AAT and fax it through to the Tribunal.  That application carries Mr Puafisi’s signature and the date 10 August 2012,suggesting that Mr Puafisi had received the notice of cancellation prior to the deemed date of receipt (7 August 2012).  In any event, Mr Puafisi’s evidence was so vague I could not be satisfied, on balance, that he received the notice out-of-time.  In case I am wrong on that point, I will proceed to consider the second issue, namely, whether there was a defect in the method of the giving of the notice.

7. The respondent Minister contends that there was no error in the method used to give Mr Puafisi the notice of the cancellation decision and in support, points to the statement prepared by Mr Michael Saville, an officer of the Department.  The statement details the steps taken by Departmental officers to dispatch the notice to Mr Puafisi.  Having reviewed that material, I am unable to identify any defect in the methodology employed in the giving of the notice, in terms of the requirements imposed by the Regulations or the Migration Act and therefore it is not open to me to take the date that Mr Puafisi received the notice advising as being more than seven days after the date of that notice.

8. It follows that Mr Puafisi’s application to the AAT is out-of-time and the tribunal lacks the power to review the substantive application.

I certify that the preceding 8 (eight) paragraphs are a true copy of the reasons for the decision herein of Senior member A K Britton

........................................................................

Associate to Senior Member A K Britton

Dated 4 October 2012

Date(s) of hearing	21 September 2012
Advocate for the Respondent	Catherine Darcy