Leroy Auimatagi and Minister for Immigration and Citizenship RESPONDENT
[2012] AATA 26
•19 January 2012
[2012] AATA 26
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2011/5378
Re
Leroy Auimatagi
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms J F Toohey, Senior Member
Date 19 January 2012 Place Sydney For reasons given orally at the hearing of this matter, the Tribunal has no jurisdiction to determine the application.
..........[sgd]..............................................................
Ms J F Toohey, Senior Member
Catchwords
MIGRATION – JURISDICTION – whether Tribunal has jurisdiction to review decision to cancel visa on character grounds – whether application lodged in time – application lodged out of time – no discretion to extend time – no jurisdiction to review decision.
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Migration Regulations 1994
REASONS FOR DECISION
Ms J F Toohey, Senior Member
19 January 2012
On 14 December 2011, Mr Leroy Auimatagi lodged with the Tribunal an application to review a decision by the Minister for Immigration and Citizenship (the Minister) to cancel his visa because of his substantial criminal record.
Mr Auimatagi is currently in the Mid North Coast Correctional Centre serving a sentence which is due to expire on 23 February 2012. The Minister says his continued stay in Australia presents an unacceptable risk of serious harm to the Australian community.
The sole issue before the Tribunal on this occasion is whether it has jurisdiction to determine Mr Auimatagi’s application for review. At a hearing by telephone on 19 January 2012, the Tribunal decided it did not have jurisdiction. These written reasons reflect reasons given orally at the hearing
BACKGROUND
On 2 November 2011, the Minister cancelled Mr Auimatagi’s Subclass 444 (Special Category) (Temporary) (Class TY) visa under section 501(2) of the Migration Act 1958.
On 4 November 2011, the Department of Immigration and Citizenship (the Department) sent a letter to Mr Auimatagi notifying him that his visa had been cancelled. The letter was sent to the last address known to the Minister, which was at Parklea Correctional Centre.
The Department has provided a detailed affidavit from the officer who supervised the case officer responsible for preparing and sending the letter to Mr Auimatagi, attaching copies of the following documents:
(a)a letter dated 2 November 2011 notifying Mr Auimatagi that his visa had been cancelled under section 501(2) of the Migration Act 1958;
(b)an envelope addressed to Mr Auimatagi at Parklea Correctional Centre marked “Urgent legal document” and bearing a registered post sticker;
(c)a Department log showing documents sent by registered post on 4 November 2011 to various addresses including to Mr Auimatagi at Parklea Correctional Centre;
(d)an email sent on 4 November 2011 from the case officer to the Department’s “Compliance team” confirming that a “notification package” had been sent to Mr Auimatagi that day by registered post to his address at Parklea Correctional Centre and stating that “prison and all relevant authorities have been advised”.
There is no reason to doubt the case officer’s affidavit or the copies of documents attached to it. I am satisfied that notice was sent to Mr Auimatagi at the last address known to the Minister on 4 November 2011.
As the notice was posted within three working days of its date, Mr Aumatiagi is taken to have received it on 15 November 2011 which was seven working days after the date of the notice: sections 500(6B) and 501G(1) of the Migration Act 1958 and regulations 2.55 (1)(b), (3)(c), (4) and (7) of the Migration Regulations 1994.
WHEN DID MR AUIMATAGI HAVE TO LODGE HIS APPLICATION FOR REVIEW?
The Act contains very strict time limits for applications for review of decisions to cancel a visa under section 501. An application must be lodged within nine days after the day on which a person is notified of the decision: sections 500(1)(b) and 500(6B). This means Mr Auimatagi had to lodge his application by 24 November 2011.
Mr Auimatagi’s application was not lodged until 14 December 2011
CAN THE TIME FOR LODGING THE APPLICATION BE EXTENDED?
By section 29(7) of the Administrative Appeals Tribunal Act 1975, the Tribunal has a broad power to extend the time for lodging an application if it is satisfied that it is reasonable in all the circumstances to do so. However, that power is specifically excluded by section 500(6B) of the Migration Act 1958.
There are no means by which the Tribunal may extend the time for lodging an application for review in a case such as this.
DID MR AUIMATAGI IN FACT RECEIVE THE NOTICE AT A LATER DATE?
On 28 November 2011, Mr Auimatagi signed an acknowledgement of receipt of the cancellation notice. The acknowledgement does not state on what date he actually received the notice.
If the Minister makes an error in giving a notice and the person concerned can show he or she received it at a later time, then the deeming provisions referred to above do not apply and the time for lodging an application for review runs from the date of actual notification: regulation 2.55(9) of the Migration Regulations 1994.
The Minister submits, and I accept, that no error was made in giving the notice to Mr Auimatagi. However, even if there had been an error, and even if Mr Auimatagi did not receive the notice until 28 November 2011, his application for review had to be lodged with the Tribunal by 7 December 2011. As already noted, it was not received until 14 December 2011.
CONCLUSION
The Tribunal has no power to extend the time for lodging an application for review of a decision to cancel a visa under section 500(6B) of the Migration Act 1958. As Mr Auimatagi’s application for review was lodged out of time, the Tribunal has no jurisdiction to determine it.
I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of Ms J F Toohey, Senior Member.
.........[sgd]...............................................................
Associate
Dated 19 January 2012
Date(s) of hearing 19 January 2012 Applicant In person Solicitors for the Respondent Cate Darcy, Department of Immigration and Citizenship In-House Litigation Section
2
0
0