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

[2022] AATA 209

Hoff and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 209 (11 February 2022)

Division: GENERAL DIVISION

File Number:2021/9162          

Re:Luke Tama Hoff  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:11 February 2022

Place:Perth

The application 2021/9162 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to review the decision of the delegate not to revoke the Applicant’s visa cancellation.

...[SGD].....................................................................

Deputy President Boyle

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – request for adjournment – Migration Act 1958 (Cth) – s 500(6B) – Migration Regulations 1994 (Cth) – decision of delegate of the Minister not to revoke mandatory cancellation of visa – application for review lodged out of time – Tribunal cannot extend time – Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4) – Tribunal satisfied no jurisdiction – application dismissed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) ss 29(7), 29(8), 42A(4)

Migration Act 1958 (Cth) ss 500(6B), 501, 501(3A), 501CA(4), 501G, 501G(1)

Migration Regulations 1994 (Cth) reg 2.55(5)

SECONDARY MATERIALS

Administrative Appeals Tribunal, ‘General Practice Direction’ (28 February 2019) – paras 4.38, 4.39, 4.41

REASONS FOR DECISION

Deputy President Boyle

11 February 2022

1. The Respondent (Minister) seeks the dismissal of the substantive application in these proceedings under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) on the basis that the decision sought to be reviewed is not reviewable by the Tribunal.

   APPLICANT’S REQUEST FOR ADJOURNMENT

2. At the commencement of the resumed hearing of the Minister’s application for dismissal on 11 February 2022, the Applicant sought an adjournment on the basis that he wanted legal representation at the hearing. The Applicant identified the person whom he wanted to represent him as Mr Gerry Georgatos. It emerged that Mr Georgatos is not a lawyer.

3. The Applicant advised that he had spoken to Mr Georgatos several months ago, however, the Applicant had not appointed Mr Georgatos to represent him. Nothing had been filed with the Tribunal appointing Mr Georgatos as the Applicant’s representative.

4. The Minister’s application had first come on for hearing 17 December 2021 at which time the application was adjourned and I made directions for the Minster to provide further submissions and evidence. The Applicant appeared at that hearing unrepresented.

5. Pursuant to the directions I made on 17 December 2021, the Minister filed and served on the Applicant further submissions and evidence on 27 January 2022. Prior to the request by the Applicant to adjourn the hearing on 11 January 2022, the Applicant had not indicated that he required or was seeking representation.

6. The Tribunal’s General Practice Direction[1] paras 4.38, 4.39 and 4.41 are as follows:

   [1] Administrative Appeals Tribunal, ‘General Practice Direction’ (28 February 2019).

   4.38 We will not adjourn a hearing date unless there are good reasons to justify the adjournment. In general, the following matters are not, of themselves, sufficient reasons for an adjournment to be granted:

   (a) the unavailability of counsel; or

   (b) the consent of the other party.

   4.39 Any application for an adjournment must be made at the earliest possible opportunity. It must:

   (a) be in writing addressed to the District Registrar;

   (b) include the reasons for seeking an adjournment;

   (c) be signed by you or the decision-maker; and

   (d) be accompanied by any documents that support the application.

   …

   4.41 We will not grant an application for an adjournment made less than ten working days before the hearing unless there are particular and compelling reasons for the  hearing to be adjourned. An application made on the day of a hearing, even when advance notice has been given, will not be granted unless there are exceptional reasons.

7. The Applicant has provided no exceptional reason for the Minister’s application for dismissal to be adjourned again.

8. Further, the basis upon which the Minister makes the application for dismissal is compelling to the point of irresistibility and there would be no utility in the application again being adjourned. Based on the undisputed facts, the application must be dismissed for the reasons set out below. Accordingly, I refused the Applicant’s request to adjourn the hearing of the Minister’s application to dismiss.

9. On 11 February 2022 I allowed the Minister’s application, dismissed the applicant’s substantive application and delivered oral reasons. Those reasons are set out below.

10. The Applicant is a citizen of New Zealand. He is currently in immigration detention in Western Australia. On 21 November 2019, the Applicant’s Special Category (Class TY) Subclass 444 (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he failed to pass the character test (the Cancellation Decision).

11. The Applicant made representations about why the Cancellation Decision should be revoked. After considering these representations, on 2 June 2020, a delegate of the Respondent (Minister) made a decision under s 501CA(4) of the Act not to revoke the Cancellation Decision (the Non-revocation Decision).

12. A copy of the Non-revocation Decision and the other documents required by s 501G of the Act were hand delivered to the Applicant on 3 June 2020, as evidenced by a signed confirmation of receipt by the Applicant. Regulation 2.55(5) of the Migration Regulations 1994 (Cth) provides that if the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person. I note that the Applicant stated in his application that he received the Non-revocation Decision on 2 June 2020. I prefer the evidence of the signed acknowledgement of receipt dated 3 June 2020. I will therefore treat the Applicant as having received notice of the Non-revocation Decision on 3 June 2020.

13. On 29 November 2021, the Applicant filed the application in the Tribunal seeking review of the Non-revocation Decision.  

14. Section 500(6B) of the Act provides that if a person whose visa is cancelled is in the migration zone, the application to the Tribunal for the review of a decision under s 501 or s 501CA(4) of the Act must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Act.

15. I have reviewed the documentation and am satisfied that the notice of the Non-revocation Decision handed to the Applicant on 3 June 2020 complied with the requirements of s 501G(1) of the Act and that the Applicant was, therefore, duly notified of the decision for the purposes of s 500(6B) of the Act on 3 June 2020.

16. The latest date that the Applicant could lodge an application for review in the Tribunal in accordance with s 500(6B) of the Act was, therefore, 12 June 2020.

17. The Tribunal has no discretion to extend the time for the Applicant to make the application. Section 500(6B) of the Act provides that the provisions of the AAT Act under which the Tribunal can extend the time (including ss 29(7) and (8) of the AAT Act which permit an Applicant to make a written extension of time application) do not apply to applications to review decisions under s 501CA(4) of the Act not to revoke cancellation of a visa.

18. 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”. As the Applicant filed his application outside of the nine-day period prescribed by s 500(6B) of the Act, I am satisfied that the Tribunal does not have jurisdiction and that the Non-revocation Decision is not reviewable by the Tribunal. The application must, therefore, be dismissed.

    DECISION

19. Application 2021/9162 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to review the Non-revocation Decision.

I certify that the preceding 19 (nineteen) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

...[SGD].....................................................................

Associate

Dated: 11 February 2022

Dates of hearing:	17 December 2021 and 11 February 2022
Applicant:	By telephone
Counsel for the Respondent:	Mr A Burgess
Solicitors for the Respondent:	Sparke Helmore Lawyers