Hazelwood and Minister for Immigration and Citizenship (Practice and procedure)
[2025] ARTA 706
•28 May 2025
Hazelwood and Minister for Immigration and Citizenship (Practice and procedure) [2025] ARTA 706 (28 May 2025)
Applicant:Robert James Hazelwood
Respondent: Minister for Immigration and Citizenship
Tribunal Number: 2025/3419
Tribunal: General Member K. Thornton
Place:Melbourne
Date of oral reasons: 28 May 2025
Date of written reasons: 4 June 2025
Decision:The Tribunal does not have jurisdiction to review the application. The application is dismissed under s 97 of the Administrative Review Tribunal Act 2024 (Cth).
..........................[SGD]..............................................
General Member K. Thornton
Catchwords
PRACTICE AND PROCEDURE – jurisdiction – migration – non-revocation decision – nine day time limit to apply for merits review – whether notice at s 501G(1) of the Migration Act complied with – notice complied with and given in accordance with s 501G – application not lodged within time – no discretion to extend time to lodge review application – no jurisdiction – application dismissed
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Migration Act 1958 (Cth)Cases
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
Fotu v Minister for Immigration and Multicultural Affairs [2024] ARTA 45
Minister for Immigration and Border Protection v EFX17 (2021) 271 CLR 112
WACB v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 79 ALJR 94Statement of Reasons
On 28 May 2025 this Application was listed before the Tribunal for an interlocutory hearing on the question of jurisdiction. The Applicant was represented by Mr William Berthelot, solicitor from Legal Aid NSW. The Respondent was represented by Mr Anthony Hall of counsel, instructed by Mr Matthew Burnham from Sparke Helmore. Each party filed written submissions which were tendered at the hearing.[1] The Respondent also prepared a Tender Bundle which contained the relevant materials in the matter.[2]
[1] Exhibit A1 – Applicant’s Submissions dated 27 May 2025; Exhibit R1 – Respondent’s Submissions dated 22 May 2025.
[2] Exhibit R2 – Tender Bundle.
Following oral arguments, the Tribunal adjourned to consider its decision. The same day the Tribunal delivered oral reasons in the matter. The Tribunal determined it did not have jurisdiction to review the application and dismissed it under s 97 of the Administrative Review Tribunal Act 2024 (Cth). On 3 June 2025, the Applicant made a request for the written reasons for the Tribunal’s decision. These are those reasons.
BACKGROUND
The Applicant seeks review of a decision of a delegate of the Respondent made on 16 April 2025 to not revoke the mandatory cancellation of the Applicant’s Special Category (Class TY) (Subclass 444) visa.[3]
[3] Exhibit R2, 8.
The Applicant was notified of the non-revocation decision on 17 April 2025.[4] The notification was made by hand to the Applicant at Parklea Correctional Complex in New South Wales.
[4] Ibid 5-6.
The Applicant acknowledged receipt of the notification by signing and dating the acknowledgement of receipt page. Correctional Officer Smith also signed the acknowledgment confirming that the documents were received by Mr Hazelwood on 17 April 2025.[5]
[5] Ibid 15-16.
Under the hearing ‘Review Rights’ the notification stated:[6]
The Department cannot consider the cancellation of your visa any further. However, you are entitled to apply to the Administrative Review Tribunal (ART) for a merits review of this decision. An application for merits review of the decision must be given to the ART within nine (9) days after the day on which you are taken to have received this letter. The ART has no power to extend this timeframe.
(Emphasis in original).
[6] Ibid 5.
This deadline is set out in s 500(6B) of the Migration Act 1958 (Cth) (‘the Act’) and states:
If a decision under section 501 of 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 ART for a review of the decision must be lodged with the ART within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, sections 18 and 19 of the ART Act do not apply to the application.
The notification to the Applicant also included an information sheet titled ‘How to Apply for Merits Review by the Administrative Review Tribunal’ and set out clear instructions on how to make an application.[7] The parties agreed at the Tribunal hearing that this information sheet forms part of the notification. It stated (in part):
[7] Ibid 3.
To apply to the Administrative Review Tribunal (ART) for a review of the decision, you can either:
· completing and submitting the electronic
· application form accessible from the Tribunal website at and completing the paper form accessible from the Tribunal website at and:
oposting, or otherwise delivering it to a registry of the Tribunal
oemailing it to [email protected]; or
· letter posted or otherwise delivered to a registry of the Tribunal or emailed to [email protected]. The letter must include a copy of the decision sought to be reviewed and the following information:
othe applicant’s name
ocontact details of an applicant or their representative
othe nature of the decision sought to be reviewed
othe date of the decision
othe date the decision was received
othe reasons why the applicant says the decision should be reviewed.
The applicant’s application for review was received by post to the Sydney Registry of the Tribunal on 2 May 2025.[8] This is outside of the nine-day timeframe. The issue in this application was whether the notification given to Mr Hazelwood satisfied the requirements of s 501G(1)(f)(ii) of the Act.
[8] Ibid 22.
APPLICANT’S CONTENTIONS
By written submissions dated 27 May 2025, the Applicant contends that he was not validly notified of the non-revocation decision in accordance s 501G(1)(f)(ii) because the notice incorrectly stated the time in which an application for review can be made.[9] The Applicant argues that, as a result of the defective notification, time to apply for a review had not started to run.[10]
[9] Exhibit A1 [3].
[10] Ibid.
The basis of the Applicant’s argument is that the notification letter given to him by the Department stated ‘an application for merits review of the decision must be given to the ART within nine days after the day on which you are taken to have received this letter’ (emphasis added).[11] The Applicant submits that the words ‘must be given’ are not compliant with s 501G(1)(f)(ii) – rather it must state that an application must be lodged with (that is, received by) the ART within 9 days: s 500(6B).[12] The Applicant relies upon an earlier Tribunal decision of Fotu v Minister for Immigration and Multicultural Affairs (‘Fotu’) in which Deputy President Thompson SC considered a notification with identical wording.[13] In that case, the Tribunal held that that the notification letter was misleading because it used the phrase ‘given to’ rather than ‘received by’ and thus was defective.[14] In oral submissions made before this Tribunal, the Applicant also referred to DFQ17v Minister for Immigration and Border Protection, and submitted that the meaning of the word ‘state’ in the context of s 501G(1)(f)(ii) must not only be complete but clear as well, which this notification was not.[15]
[11] Ibid [15].
[12] Ibid [16].
[13] Ibid [19]; [2024] ARTA 45 (‘Fotu’).
[14] Fotu [42]-[43].
[15] [2019] FCAFC 64 [57]-[58] (Perram J).
RESPONDENT’S CONTENTIONS
By its written submissions dated 22 May 2025, the Respondent contends the reasoning in Fotu is incorrect and should not be followed.[16] The Respondent referred to the High Court’s reasoning in Minister for Immigration and Border ProtectionvEFX17 (‘EFX17’) which confirmed that the term “give” in s 501CA(3) bore its ordinary meaning of physical delivery, as it does when used elsewhere in the Act.[17] The Respondent submitted that the High Court’s reasoning in EFX17 and WACB v Minister for Immigration and Multicultural and Indigenous Affairs confirm that the ordinary meaning of “give”, including when used in the Act, is “to deliver” and not merely send or dispatch.[18]
[16] Exhibit R1 [14].
[17] (2021) 271 CLR 112 [23] (Kiefel CJ, Gageler, Keane, Edelman and Steward JJ).
[18] Exhibit R1 [17]; (2004) 79 ALJR 94 [37] (Gleeson CJ, McHugh, Gummow and Heydon JJ).
The Respondent therefore contends that the use of the phrase “must be given to the ART” in the notification letter accurately and clearly conveyed that an application for review was required to be made in the sense of lodged with the Tribunal within nine days after the day on which the applicant received the notice.[19] As such, the notification given to the Applicant was not misleading and complied with the requirements in s 501G(1)(f)(ii) of the Act.[20]
[19] Exhibit R1 [19].
[20] Ibid.
CONSIDERATION
The Tribunal has had regard to the written and oral submissions of the parties. The Tribunal considers the phrase ‘must be given to the ART’ in the notification dated 17 April 2025 is not misleading and is compliant with s 501G(1)(f)(ii) of the Act. The Tribunal finds that the phrase ‘must be given to the ART’ is to be given its ordinary meaning, and consistent with High Court authority means delivered to the ART.
The notification clearly conveyed the timeframe by which an application must be made, and it clearly stated that an application must be given to the ART. The process of applying to the ART was articulated within the notification and stated that:[21]
·an application for merits review must be given to the ART within 9 days after the date of which you have received this letter,
·the ART has no power to extend this timeframe
·the notification contained an information sheet about How to Apply for Merits Review, and
·that as this letter was given to you by hand you are taken to have been notified of the decision when this letter was handed to you.
[21] Exhibit R2 5-6.
The information sheet refers to the methods of applying for review. One of those methods is by post. The Tribunal finds that the words ‘letter posted or otherwise delivered to a registry of the Tribunal’ is sufficiently clear. The words ‘letter posted or otherwise delivered’ means delivered to a registry of the ART, the addresses of which were provided in the information sheet.
As the notification to Mr Hazelwood was made on 17 April 2025, the timeframe for lodging an application for review expired on Saturday 26 April 2025. Because that day was a Saturday, the due date for lodgement fell on the next business day being Monday 28 April 2025.[22]
[22] By virtue of s 36(2) of the Acts Interpretation Act 1901 (Cth).
Mr Hazelwood’s application for review was received by the Sydney Registry of the Tribunal by post on Friday 2 May 2025 which is outside of this timeframe.
As such, the Tribunal has no jurisdiction to review Mr Hazelwood’s application.
DECISION
Mr Hazelwood’s application is therefore dismissed under s 97 of the Administrative Review Tribunal Act 2024 (Cth).
Date of hearing: 28 May 2025 Advocate for the Applicant: Mr William Berthelot Solicitors for the Applicant: Legal Aid NSW Counsel for the Respondent: Mr Anthony Hall Solicitors for the Respondent: Mr Matthew Burnham of Sparke Helmore Lawyers
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