Lesianawai and Minister for Home Affairs (Migration) - [2019] AATA 2947

Lesianawai and Minister for Home Affairs (Migration) [2019] AATA 2947 (22 August 2019)
Division:GENERAL DIVISION
File Number: 2019/2812
Re:Isaac Lesianawai
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member Tigiilagi Eteuati
Date:22 August 2019
Place:Brisbane

The Tribunal dismisses the application for review pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
........................[SGD]................................................
Member Tigiilagi Eteuati
Catchwords
PRACTICE AND PROCEDURE - cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 – application for review dismissed as being made out of time – whether the Tribunal has power to reinstate application – whether application dismissed in error - whether notification letter was affected by error identified in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 – whether the Applicant was effectively notified of the cancellation decision in accordance with regulation 2.55 of the Migration Regulations 1994 – application dismissed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Home Affairs [2019] FCA 1102
Anaki and Minister for Immigration and Citizenship [2012] AATA 116
Auimatagi and Minister for Immigration and Citizenship [2012] AATA 26
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
BMY18 v Minister for Home Affairs & Anor [2019] FCCA 1381
BOQ15 v Minister for Immigration & Anor [2019] FCCA 1477
Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772
BUY18 v Minister for Immigration & Anor [2019] FCCA 1787
CAV18 v Minister for Immigration & Anor [2019] FCCA 1921
Chadwick and Minister for Immigration [2012] AATA 529
CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108
GAV18 v Minister for Home Affairs [2019] FCA 1259
Gonzales and Minister for Immigration and Citizenship [2011] AATA 812
Logova and Minister for Immigration and Citizenship [2011] AATA 955
Mahia and Minister for Immigration and Citizenship [2011] AATA 789
Matete v Minister for Immigration & Anor [2008] FMCA 573
Matete v Minister for Immigration and Citizenship [2008] FCA 1876
Michael and Secretary, Department of Employment, Science and Training and Edwards and Secretary, Department of Health and Ageing [2006] AATA 227
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77
Ngapera and Minister for Immigration and Citizenship [2012] AATA 24
Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594
Sainju v Minister for Immigration and Citizenship [2010] FCA 461
Scott and Minister for Immigration and Citizenship [2012] AATA 400
Singh v Minister for Immigration & Anor [2019] FCCA 2106
Singh v Minister for Home Affairs & Anor [2019] FCCA 2153
Slobodan Pavlovic and Telstra Corporation Limited [1994] AATA 187
Smith and Minister for Immigration and Citizenship [2011] AATA 777
Tay v Minister for Immigration and Citizenship and Another [2010] FCAFC 23
Tran and Minister for Immigration and Citizenship [2011] AATA 21
Tupe and Minister for Immigration and Citizenship [2011] AATA 100
Wilson and Minister for Immigration and Citizenship [2011] AATA 325
Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172
Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151
REASONS FOR DECISION
Member Tigiilagi Eteuati
22 August 2019
BACKGROUND

This is an application by Mr Isaac Lesianawai (“the Applicant”) for review, or for reinstatement of an application for review, of a decision made by the delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) on 9 October 2013, cancelling the Applicant’s Class BF Transitional (Permanent) visa under section 501(2) of the Migration Act 1958 (Cth) (“the Act”).
The Applicant was notified of the Minister’s decision by letter dated 10 October 2013. That letter was sent to the Applicant by registered post to the postal address for the correctional centre where he was incarcerated.
On 30 October 2018, over five years after the Minister’s decision, the Applicant applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the Minister’s decision of 9 October 2013.
On 8 November 2018, Senior Member Tavoularis dismissed the application pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) as he was satisfied the Minister’s decision was not reviewable as the review application was made out of time.
On 18 April 2019, the Full Court of the Federal Court (Rares, Perram and Farrell JJ) handed down its decision in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (“DFQ17”).
On 20 May 2019, the Applicant lodged what appeared to be a second application for review of the Minister’s decision to cancel his visa on 9 October 2013. Accompanying that application was a letter from the Applicant’s lawyer that read as follows:
“…Mr Lesianawai had his Subclass 154- Transitional Permanent visa cancelled under s 501(2) of the Migration Act on 10 October 2013. The decision indicated that the applicant had the right to review the decision by the AAT within 9 days after being notified of the decision.
We submit that even though the timeframe for review has technically expired, that the Federal Court decision DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 may apply to our client’s case, given that the notice issued by the Department of Immigration did not appropriately specify the date in which the application for review may be made.
The legal impact for this decision is a finding that under these circumstances, the AAT has jurisdiction given that the Department of Immigration and Border Protection’s letter dated 10 October 2013 notifying the decision can be considered a ‘piecemeal, entirely obscure and essentially incomprehensible. … the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application’. (DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 at {62] [sic].
Mr Lesianawai received the purported (defective) notification from the Department of Immigration while incarcerated advising of a nine-day timeframe within which to lodge a review application; without clearly conveyancing when was the time in which the application for review may be made and when it ended. In the notice the delegate did not specify the particular date….”
[Emphasis in original]
At the outset, it was not particularly clear what the Applicant sought from the Tribunal by lodging a second application for review of a decision from 2013 which had already been dismissed by the Tribunal in 2018 as having been lodged out of time. Normally, once the Tribunal has made a determination in relation to an application, the Tribunal’s power to engage with the application will be spent, rendering the Tribunal functus officio in relation to the application. Normally, if an applicant considers that the Tribunal’s decision is legally flawed, the appropriate avenue of redress would be to appeal, or seek judicial review of the decision, in the Federal Court.
On 14 June 2019, the Tribunal held an interlocutory hearing in relation to the Tribunal’s jurisdiction to review the Applicant’s current application. At the hearing, the Applicant’s solicitor made what appeared to be alternative submissions as to what was being sought in this matter.
The first submission appeared to be that the Applicant sought for the application which was dismissed on 8 November 2018, to be reinstated pursuant to section 42A(9) of the AAT Act. The Applicant argued that it was appropriate to do so given that the notification letter sent to the Applicant was affected by the type of error identified in DFQ17. That argument is rejected as section 42A(9) is to be read with sections 42A(8) and (8A) of the AAT Act and only applies to matters discontinued or matters dismissed for failure to appear pursuant to section 42A(1B) and 42A(2) of the AAT Act respectively: see Brehoi v Minister for Immigration & Multicultural Affairs [1999] FCA 772 and Slobodan Pavlovic and Telstra Corporation Limited [1994] AATA 187.
The second argument submitted by the Applicant, was that the application should be reinstated pursuant to section 42A(10) of the AAT Act, as the application had been “dismissed in error.” As far as the Tribunal can make out, that argument proceeded on the basis that the notification letter was affected by the error identified in DFQ17 and thus the Applicant was not notified of the cancellation decision in accordance with section 501G of the Act. It followed that the time for applying for review in section 500(6B) of the Act had not commenced and therefore the Tribunal had erred in finding that the time for applying for review had elapsed and consequently dismissing the application for review under section 42A(4) of the AAT Act.
The Tribunal notes that the power to reinstate under section 42A(10) of the AAT Act is founded upon the establishment of an error and if this cannot be identified the Tribunal is functus officio: Slobodan Pavlovic and Telstra Corporation Limited [1994] AATA 187. An error for the purposes of section 42A(10) of the AAT Act will include, but not be limited to, a jurisdictional error of the type identified in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 (“Bhardwaj”).[1]
[1] Goldie v Minister for Immigration & Multicultural Affairs[2002] FCAFC 367 per Wilcox and Downes JJ at [29] to [36].
In Bhardwaj the High Court indicated that, as a decision affected by jurisdictional error is no decision at all, the obligation on the Tribunal to make a decision, otherwise affected by jurisdictional error, remained unperformed by the Tribunal and the Tribunal could act to remedy this deficiency. The Tribunal notes that the reasoning in Bhardwaj does not require the power in section 42A(10) of the AAT Act for the Tribunal to remake a decision affected by jurisdictional error. If the Tribunal is satisfied that its decision is affected by jurisdictional error, it may remake its decision.
However, in Michael and Secretary, Department of Employment, Science and Training and Edwards and Secretary, Department of Health and Ageing [2006] AATA 227 (“Michael”), Downes J, the then President of the Tribunal, stated that decisions of the Tribunal should only be reconsidered pursuant to Bhardwaj in the rarest of cases. President Downes relevantly stated (at [13] and [15] to [17]):
“It follows that, except in the clearest case, the making of a second decision by a tribunal will only lead to uncertainty of result. This is, at the least, a sound reason for a tribunal to act with extreme caution before reconsidering a matter which has already been decided.
…
It seems to me that because of the substantive and practical problems I have adverted to it will very rarely be ‘wise’ for a tribunal to reconsider its own decisions.
Gleeson CJ characterised the error in Bhardwaj on four occasions as ‘administrative oversight’, ‘administrative slip’ or ‘administrative error’ (at pp 602, 605(2) and 606). Kirby J, in dissent, used the phrase ‘administrative error’ three times (at pp 627 and 630(2)). The justices were referring to the fact that the underlying cause of the error was a matter of administration internal to the Registry of the Immigration Review Tribunal and not something associated with the actual conduct of the hearing or the process of decision-making following it. Accordingly, one appropriate basis for a limitation on reconsideration in accordance with Bhardwaj is confining such cases to cases of administrative or similar error.
For all these reasons, I conclude that it will only be appropriate for tribunal decisions to be reconsidered pursuant to the Bhardwaj principle when an impugned decision was obviously wrong and when the cause of the error is some administrative or similar mistake. In all but the rarest of cases, tribunal decisions must be treated as final and subject only to reconsideration for error of law on appeal.”
For the purposes of these reasons, the Tribunal has considered whether the application made to the Tribunal on 30 October 2018 was dismissed in error and whether the decision of the Tribunal in dismissing the application was affected by the type of error identified in Bhardwaj. The Tribunal has also considered the current application as a new and separate application for review of the decision to cancel the Applicants visa in October 2013.
Did the cancellation notification letter state the time in which the application for review may be made?
In DFQ17, the applicant’s application for a Protection visa was refused by the Minister’s delegate under section 65 of the Act. Section 66(1) of the Act provides that when the Minister grants or refuses to grant a visa, he or she is to notify the Applicant of the decision in the prescribed way. Section 66(2)(d)(ii) provides that the notification must state “…the time in which the application for review may be made;…” to the Tribunal.
In DFQ17, the Full Court found that the letter in that case, notifying the applicant of the decision refusing her application for a Protection visa, did not state “…the time in which the application for review may be made;…” to the Tribunal. As the notification letter in DFQ17 did not state the time in which the application for review may be made, the applicant had not been “notified” and thus the 28 day review period in that case had not begun to run.
Regulation 2.16(3) of the Migration Regulations 1994 (“the Regulations”) and the note following it provide:
“The Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the Act.
Note: If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method.”
Section 494C(4)(a) of the Act relevantly provides:
(4) If the Minister gives a document to a person by the method in subsection 494B(4) (which involves dispatching the document by prepaid post or by other prepaid means), the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia--7 working days (in the place of that address) after the date of the document;
…
In DFQ17, the application which was refused was for a Protection visa and as such was reviewable under Part 7 of the Act. Section 412(1)(b) of the Act relevantly provides that an application for review of a Part 7-reviewable decision must be given to the Tribunal within the period prescribed. Regulation 4.31(2) of the Regulations relevantly provides that for an applicant not in immigration detention, “…the period in which an application for review of the decision must be given to the Tribunal by or for the applicant is 28 days, commencing on the day the applicant is notified of the decision.”
As Perram J stated in DFQ17 at [43]:
“Thus an unsuccessful applicant must make any review application in the Tribunal within 28 days of the day the applicant is notified of the decision or, should that decision fall on a non-working day, the next working day. When is an applicant notified of a refusal decision? The answer to this question turns upon the mode of delivery by which the refusal is communicated. In this case, the decision was sent by pre-paid post. Accordingly, the matter was governed by s 494C(4)….”
As mentioned above, section 494C(4) of the Act relevantly provides that if the Minister gives a document to a person in Australia by prepaid post, the person is taken to have received the document seven working days after the date of the document.
In DFQ17, the applicant was taken to have received the decision on
14 February 2017, that being seven working days after the date of the letter of
3 February 2017. Thus, the effect of regulation 4.31(1) of the Regulations was that any review application with the Tribunal had to be made by the Applicant within 28 days of
14 February 2017, that is, by 13 March 2017.
Perram J noted at [45]:
“Pausing here, it should be noted that the calculation of 13 March 2017 from 3 February 2017 is not a straightforward exercise. Section 494C(4)(a) uses the expression ‘7 working days... after the date of the document’ whereas reg 4.31(2) stipulates ‘28 days, commencing on the day the Applicant is notified of the decision’. Applying s 36(1) of the Acts Interpretation Act 1901 (Cth) (which applies to reg 4.31(2) by virtue of s 13(1)(a) of the Legislation Act 2003 (Cth)) and having regard to the difference between days and working days, the 7-day period is not inclusive of the first day, weekends and public holidays but the 28-day period is inclusive of the first day, weekends and public holidays. Accordingly, 14 February 2017 must be double-counted. Whilst previous decisions of this Court have accepted that the notification letter need not draw attention to the need to double-count the day a person is deemed to have been notified of the decision (see, for example, Cao v Minister for Immigration and Citizenship [2009] FCA 586; 176 FCR 396 per North J; 176 FCR 396; CGJ16 v Minister for Immigration and Border Protection [2018] FCA 1437 per Allsop CJ), it does serve to highlight a certain need for clarity.”
The decision in DFQ17 came down to whether the notification letter in that case ‘stated’ “…the time in which the application for review may be made;…” to the Tribunal for the purposes of section 66(2)(d)(ii) of the Act. Perram J, with whom Rares and Farrell JJ agreed, found that the notification letter in that case failed to clearly convey the time in which an application for review could be made and therefore did not “state the matter in s 66(2)(d)(ii).” Rather, the notification letter was found to be “piecemeal, entirely obscure and essentially incomprehensible.” Perram J stated at [58] – [62]:
“I conclude that when s 66(2) uses the word ‘state’ it means that the notification must set out the information in each of the subsections in a way which is not only complete (as Zhan holds) but clear as well. This required the letter of 3 February 2017 annexed below clearly to convey to the Appellant that the period in which she could seek review ended on 13 March 2017.
Turning then to the letter of 3 February 2017, the question is whether it ‘states’ the time within which a review application must be made within the meaning of s 66(2). This is a question of law: Vetter v Lake Macquarie City Council [2001] HCA 12; 202 CLR 439 at 450 [24] per Gleeson CJ, Gummow and Callinan JJ. As I have explained, the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.
As described above, the letter referred to the time in which the application for review may be made in different sections across different pages. On page 2 of the letter under the heading ‘Review Rights’ the letter referred to the 28-day period during which the Appellant could seek review of the delegate’s refusal decision. The letter then referred to the seven working day period by which the Appellant was taken to have received the notification on page 3 under the heading ‘Financial or Case Worker Assistance’. The date of the letter was on the top left of page 1. It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count
14 February 2017, was expected to calculate 13 March 2017.
The Minister submitted that there was nothing misleading or erroneous about putting the statement as to the date on which the letter was taken to be received on a separate page because the period in which review may be sought was not the only matter in the letter that proceeded by reference to that date. Accordingly, it made logical drafting sense to express the deemed notification period separately from the explanation of the period in which review may be sought. Whilst that may explain the intent behind the drafting choices of the Minister, the present question is whether the letter clearly conveyed that the time in which the application for review may be made ended on 13 March 2017.
I have no doubt that in this case the letter of 3 February 2017 failed to convey clearly the information that any review application had to be made by 13 March 2017. It was piecemeal, entirely obscure and essentially incomprehensible. Consequently, the letter did not state the matter in s 66(2)(d)(ii). It was not in dispute that this meant that time had not yet commenced to run. The Tribunal erred in concluding that the review application was out of time and was therefore wrong in thinking it had no jurisdiction to entertain the review application.”

Although the relevant statutory framework regarding notification and application time limits are different in the current matter (as set out below), the relevant question is whether the notification letter in this case ‘states’ “…the time in which the application for review may be made” to the Tribunal. If not, following the reasoning in DFQ17, the time for applying for review will not have started to run, allowing the Applicant to lodge a valid application for review.
The decision sought to be reviewed in the current matter is a decision of a delegate of the Minister dated 9 October 2013 to cancel the Applicant’s visa under section 501(2) of the Act.
Section 501G of the Act provides for the notification requirements regarding a decision under section 501(2) of the Act. Subparagraph 501G(1)(f)(ii) requires that the notice states “…the time in which the application for review may be made;…”. This wording is identical to that in subparagraph 66(2)(d)(ii) of the Act which was under consideration in DFQ17.
Section 501G(3) of the Act provides that the notice must be given in the prescribed manner. Regulation 2.55 of the Regulations prescribes, relevantly, the manner in which cancellation notices are to be given to former visa holders (other than those held in immigration detention and notices sent under section 20 of the Education Services for Overseas Students Act 2000 (Cth) relevant to cancellation of student visas by operation of section 137J of the Act). Regulation 2.55(3) provides that a notice given to an adult must be given in one of the ways prescribed including:
“…(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means; to the person's last residential address, business address or post box address known to the Minister;…”
[Emphasis added]
Regulation 2.55(7) relevantly provides that if a notice is given to a person in Australia by prepaid post, the person is taken to have received the document:
“…7 working days (in the place of that address) after the date of the document; …”
The Respondent provided the Tribunal with a copy of a record from the Department's ICSE System, which indicates that the notification letter was sent to Applicant on 10 October 2013, the date the letter was dated, by prepaid post to the postal address of the correctional centre where the applicant was being held. The Tribunal is satisfied that the notification letter was dispatched by prepaid post within three working days of the date of the letter.
Section 500(6B) of the Act relevantly provides that an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Act. Section 500(6B) of the Act also has the effect that the time limits for applying for review and provisions relating to the extension of time to seek review under the AAT Act are inapplicable to an application for review of a decision made under section 501 of the Act.
While the relevant provisions for the notification of cancellation of a visa under section 501 of the Act and the time limits for applying review with the Tribunal are similar to those regarding the refusal of a Protection visa under section 65 of the Act, they are not the same. The Tribunal notes that the first ground of review in DFQ17, which was ultimately unsuccessful, was that notification was ineffective in that case because the refusal notification letter had not been sent to the last address for service, residential or business address provided by the applicant to the Minister for the purpose of receiving documents. As much was required by subparagraphs 494B(4)(c)(i) and (ii). In DFQ17 the applicant argued that the postal address he had provided in his visa application form was not provided to the Minister for the purpose of receiving documents. While Rares J upheld the appeal on this basis, Perram and Farrell JJ did not accept that this ground had been made out.
This issue does not arise in the present case, as the provisions of subsection 494B(4)(c) requiring that the notice be sent to an address provided by the Applicant to the Minister for the purpose of receiving documents, is absent from the relevant provisions in regulation 2.55 of the Regulations. Rather, regulation 2.55(3)(c)(ii) provides that notification by prepaid post must be sent “…to the person's last residential address, business address or post box address known to the Minister.” Therefore, while the provisions in section 494B relating to notification by prepaid post require letters to be sent to the address provided by the Applicant to the Minister “…for the purposes of receiving documents;…”, the provisions in regulation 2.55 only require that notification by prepaid post be sent to the last address known to the Minister. For the purposes of regulation 2.55 it is unnecessary for an Applicant to have provided an address to the Minister for the purpose of receiving documents.[2] The question in relation to regulation 2.55 is whether the address was the person’s last residential address, business address or post box address “…known to the Minister”.
[2] Matete v Minister for Immigration & Anor [2008] FMCA 573 at [14].
In the present case, the Respondent provided the Tribunal with a Conviction, Sentences and Appeals Report from the NSW Department of Corrective Services which showed that the Applicant was being held at the correctional centre to which the notification letter was sent, he was in that correctional centre when the notification letter was actually sent, and he remained there for over three months after it was sent. The Tribunal is satisfied that the notification letter was sent to the last known address for the Applicant known to the Minister.
A more relevant distinction between the provisions which were relevant in DFQ17 and those in the present case is that section 500(6B) provides that an application for review must be made “…within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1) [Emphasis added]” This is to be contrasted with the time limit expressed in Regulation 4.31, which was relevant in DFQ17 and provides that “the period in which an application for review of the decision must be given to the Tribunal by or for the Applicant is 28 days, commencing on the day the Applicant is notified of the decision” [Emphasis added].
Applying s 36(1) of the Acts Interpretation Act 1901 (Cth), the significance of the difference in the relevant time periods mentioned above is that in DFQ17, Perram J at [45] illustrated the potential lack of clarity for an Applicant seeking review because of the requirement of the provisions relevant in that case to “…double count…” one of the days in determining the period in which an application could be made: see Perram J’s discussion of this issue in these reasons at paragraph [23].
However, in the current case, regulation 2.55(7) and section 500(6B) require no such double counting of days. Thus, the particular issue raised by Perram J in DFQ17, that contributed to the lack of clarity in that case as to the time in which an application for review may be made does not exist in the current case. This was conceded by the Applicant during the hearing.
The Applicant’s submissions
At the hearing the Applicant essentially advanced two arguments regarding DFQ17. The first was that foreshadowed in the Applicant’s letter to the Tribunal of 20 May 2019. That is, the notification letter which was sent to the Applicant was required to explicitly state the last day upon which the Applicant could make an application for review with the Tribunal.
The Tribunal does not accept the Applicant’s submission that the letter was required to explicitly state the final day upon which the Applicant could make an application for review to the Tribunal. That is not what the legislation requires. Rather, the legislation requires that the notification letter must state “…the time in which the application for review may be made;….”. The legislation indicates that the notification letter must state a period of time in which the application for review may be made, rather than explicitly stating the last date of that period.
According to the Full Court in DFQ17, “the question of whether the notification stated ‘the time in which the application for review may be made’ necessarily devolves to an inquiry into whether that information was clearly conveyed.” The Full Court then went on to discuss the deficiencies in that letter as mentioned previously in these reasons. If, as the Applicant argues, a notification letter is required to state the last date upon which an application for review may be made, the Full Court would not have needed to discuss the deficiencies in the notification letter in that case in the manner in which it did. It would have been sufficient to point out that the letter simply did not include the specific date which was the last date upon which the Applicant could have made an application for review. Indeed, none of the decisions of the Federal Court or the Federal Circuit Court which have considered DFQ17 have concluded that DFQ17 requires a notification letter to explicitly state the last date upon which an application for review may be made. In each of those cases, none of the notification letters provided a specific “last day” upon which a review application could be made and no error was identified to follow as a result.[3]
[3] See BMY18 v Minister for Home Affairs & Anor [2019] FCCA 1381; BOQ15 v Minister for Immigration & Anor [2019] FCCA 1477; CAV18 v Minister for Immigration & Anor [2019] FCCA 1921; Singh v Minister for Home Affairs & Anor [2019] FCCA 2153; ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108; CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080; Singh v Minister for Immigration & Anor [2019] FCCA 2106; BUY18 v Minister for Immigration & Anor [2019] FCCA 1787; GAV18 v Minister for Home Affairs [2019] FCA 1259 and Ali v Minister for Home Affairs [2019] FCA 1102.
The second argument, which appeared to be advanced for the first time at the hearing, was that another set of circumstances in this case added to the lack of clarity regarding the time in which the Applicant could apply for review, such that it could not be said that the notification stated “…the time in which the application for review may be made;…”
That set of circumstances was that, although the notification had been sent to the Applicant’s last known address by prepaid post, and the notification letter itself indicated on its front page that it had been sent by “REGISTERED POST”, when the notification was handed to the Applicant, it would have been unclear to the Applicant whether the notification had been sent by registered post or given by hand. The significance of this was that the time when the Applicant would have been deemed to have received the notification letter would be different depending on whether it was sent by post or delivered by hand. It followed that the last day for lodging a review application would have differed depending on whether the notification was given by hand or sent by post.
The Applicant argued that in these circumstances, it could not be said that the notification stated “…the time in which the application for review may be made;…”.
In the present case the notice issued to the Applicant pursuant to section 501G of the Act provided the following information on the second and third pages of the notice under the heading “Review Rights”:
“You are entitled to have this decision reviewed by the Administrative Appeals Tribunal (AAT). If you wish to have this decision reviewed by the AAT, you must lodge your application for review within nine (9) days after the day on which you were notified of the decision to cancel your visa under subsection 501(2) of the Act. The notice of cancellation consists of this letter and the attached information. If the letter is dispatched by post, it is taken to have been received seven (7) working days after the date shown on it. If it is given by hand or transmitted by fax or email, it is taken to be received on the day of actual transmission (or hand delivery).
Please see enclosed an information sheet about ‘How to Apply for Merits Review by the Administrative Appeals Tribunal’, together with two copies of:
·the decision record (Issues Paper and Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and
·each source document (“Attachment”) referred to in the decision record (other than documents containing non-disclosable information, if any);
Please complete the attached acknowledgement of receipt of this notice of visa cancellation and the enclosed information as detailed above, and return it by one of the methods shown at the foot of the first page of this letter.
PLEASE NOTE: If you believe that you have not received the complete set of the above documents, please contact this office as soon as possible. You can telephone us toll-free on 1300 722 061.”
[Emphasis in original]
This information is followed by the signature and name of the departmental officer who wrote the letter. Finally, the date of the letter is clearly stated as being 10 October 2013.
In DFQ17 the letter referred to the time in which the application for review may be made in different sections across different pages. The notification letter in DFQ17 referred to the 28 day period during which the Appellant could seek review of the Minister’s refusal decision on page two of the letter under the heading “Review Rights”. The letter then referred to the seven working day period after which the Appellant was taken to have received the notification on page three, bizarrely, under the heading “Financial or Case Worker Assistance”. The date of the letter was on the top left of page one. I must say that in reading the notification letter in DFQ17, I myself struggled to locate the deemed receipt information. As Perram J stated at [60], “It was from these three separate pieces of information across three pages under different headings that the Appellant, whilst remembering to double-count 14 February 2017, was expected to calculate 13 March 2017.”
The Tribunal does not accept the Applicant’s second and alternative argument regarding the application of DFQ17, which was raised only at the hearing.
In the current notification letter the relevant information is set out in one place, under the heading: “Review Rights” in the notification letter. As mentioned above, there was no need to double count any days during the relevant period. In addition, the Tribunal considers it was clear that the letter had been dispatched by prepaid post to the post box address for the Applicant last known to the Minister. The post box address to which the notification letter was dispatched was clearly stated on the top of the first page of the letter. In addition, the letter clearly indicated that the letter had been dispatched by registered post as the top right hand corner of the front page of the letter contained the following words in bold capitals “REGISTERED POST”.
The Tribunal notes it is likely that, as the Applicant was imprisoned in criminal custody, all correspondence sent to him, whether by post, email, facsimile or other means, would have been likely to be given to him at the jail by an employee of NSW Corrective Services. There is no evidence before the Tribunal that any such employees were officers of the Department or agents of the Minister or any reason for the Applicant to believe that this was the case. As mentioned above, the Tribunal considers it was clear that the letter had been dispatched by prepaid post to the post box address for the Applicant last known to the Minister.
In all of the above circumstances, the Tribunal considers that the notification letter dispatched to the Applicant by prepaid post to the last post box address for the Applicant known to the Minister, stated the “…time in which the application for review may be made;…”
Thus, the Tribunal finds that the notification letter in the present case was not affected by the type of error identified in DFQ17.
The Applicant’s post hearing argument - was notification of the cancellation decision given to the Applicant?
The Applicant’s application was listed for an interlocutory hearing and heard on 14 June 2019. On 26 June 2019, almost 2 weeks after the hearing, the Applicant provided further written submissions to the Tribunal. The Tribunal notes that these submissions were not requested and leave was not granted by the Tribunal for the Applicant to provide further written submissions. In any event, the Tribunal invited the Respondent to make any submissions in response if he so wished. On 10 July 2019, the Respondent filed submissions in response to the Applicant’s post hearing written submissions.
The Applicant’s post hearing written submissions raised an argument which had never previously been raised, and, unlike the DFQ17 arguments above, could have been raised when the Applicant first applied for review in October 2018. The argument relied upon the decision of Deputy President Handley in Tran and Minister for Immigration and Citizenship [2011] AATA 21 ("Tran"). The Applicant stated:
“…Of particular relevance to the Applicant’s current case, the Member in Tran was of the view that the Correctional Centre’s post office box is clearly not Mr Tran’s last post box address known to the Minister. The Member, moreover acknowledged that a notice of cancellation holds great weight and therefore, as an ‘important statutory right is at stake, the regulation should be strictly construed’. The Member found the notice of cancellation was not ‘given’ to Mr Tran as required by section 501G(1), and instead, ‘delivery of the notice to him was dependent on officers employed by the NSW Department of Corrective Services’.
Ultimately, the Member found that the notice was defective and ‘the effect of this is that the nine-day period to lodge his application for review with the Tribunal has not yet commenced’. …”
[Emphasis in original and Footnotes omitted]
In response, the Respondent submitted that the Applicant had numerous opportunities to address the Tribunal on the issue of jurisdiction prior to and during the interlocutory hearing on 14 June 2019, and failed to avail himself of those opportunities. The Respondent indicated that in those circumstances, the Tribunal should not take into account the Applicant’s post hearing submissions. The Respondent indicated that should the Tribunal be minded to take into account the Applicant’s post hearing submissions, the Respondent relied on the decision of Senior Member Kenny in Chadwick and Minister for Immigration [2012] AATA 529, and the cases cited therein, which, in the Respondent’s view, constituted the correct approach regarding notification of persons in prison. Further, the Respondent submitted that this approach should be preferred by the Tribunal over that taken in Tran.
In Tran, Deputy President Handley found that the letter notifying the Applicant of cancellation did not comply with regulation 2.55(3)(c), as it was sent to the prison where the Applicant was held and the Applicant had no control over gaining access to his mail once it had reached the prison's post box. Deputy President Handley stated (at paragraphs [45] to [47]):
"In the present matter, the deeming provisions of regulation 2.55 also appear to take account of the risk of postal delays and place the risk of such delays on the review applicant. Regulation 2.55(3)(c)(i) requires, relevantly, the notice to be dispatched ‘within 3 working days (in place of dispatch) of the date of the document’. Regulation 2.55(7) deems the person to have received the notice, if ‘dispatched from a place in Australia to an address in Australia — 7 working days (in place of that address) after the date of the document’.
However, Mr Tran's matter is not about postal delays. It is about a person in prison who is without any effective control over gaining access to his mail once delivered to the post office box of the correctional centre where he was being held. As noted above, in Mr Tran's case the effect of the Minister's submissions as to the application of regulation 2.55, if accepted, would be that Mr Tran would be deprived of a statutory right of review in circumstances over which he had no control. In my view, this is not the correct interpretation of the way in which regulation 2.55 applies.
Because an important statutory right is at stake, the regulation should be strictly construed. In Mr Tran's case, the notice of cancellation was not 'given' to Mr Tran as required by s 501G(1) of the Act. It was not dispatched to Mr Tran's last post box address known to the Minister. It was dispatched to him care of the post office box of Bathurst Correctional Centre, so that delivery of the notice to him was dependent on officers employed by the NSW Department of Corrective Services. The intervention/involvement of such a third party in the delivery of the notice is not a contingency recognised in the Regulations. For these reasons, l am not satisfied the notification complied with regulation 2.55(3)(c)."

The decision in Tran was followed by the Tribunal in Tupe and Minister for Immigration and Citizenship [2011] AATA 100 ("Tupe").
In Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594 ("Ngo"), Carr J of the Federal Court upheld the Minister's objection to competency on the basis that the Applicant did not seek review of the relevant decision within the statutory timeframe. Central to the decision was the issue as to whether regulation 2.55(7) functioned to deem receipt of the notice of cancellation in circumstances where the cancellation notice was sent to the prison where the Applicant was held. Justice Carr stated at paragraphs [9] to [12]:
"Ms Hunter swears that as at July 2002, Acacia Prison, Locked Bag 1, Wooroloo, WA 6558 was the last known address for the applicant. From prison records annexed to an affidavit of Mr Timothy John Carey, filed on 10 December 2002, I am satisfied that the applicant was in Acacia Prison between 22 November 2001 and 1 October 2002.
S50IG(1)(b) relevantly required the Minister to give the applicant notice of his decision to cancel the applicant's visa. S501G(3) required that notice of the respondent’s decision be given in the prescribed manner. The relevant prescription is provided by reg2.55(4). That regulation relevantly provided that the notice had to be given in ways which include dating it and despatching it within 3 working days of the date of the document by pre-paid post to the person's last residential address.
Reg2.55(7) provides that if a document is given by that means, the person is taken to have received the document (if despatched from a place in Australia to an address in Australia) 7 working days after the date of the document
On the evidence before me, I find that the respondent’s notification was despatched within 3 days of its date by pre-paid registered post to the applicant's last residential address, being Acacia Prison. In those circumstances the applicant is taken to have received the document on 9 July 2002 (being 7 working days from its date of 28 June 2002)."
Similarly, in Matete v Minister for Immigration & Anor [2008] FMCA 573 ("Matete"), the Federal Magistrates Court found that sending a cancellation notice to an Applicant in prison met the requirements of regulation 2.55(3)(c). Federal Magistrate Cameron stated at paragraphs [14] and [15]:
"There being no issue as to when the notification was dispatched by the Minister's department, sending the visa cancellation notice to the applicant at Grafton Correction Centre met the requirements of reg 2.55(3)(c). The applicant's last residential address known to the Minister was the Grafton prison and it was thus necessary and appropriate that the notice be sent to the applicant there. Regulation 2.55 does not require an individual in the applicant's position to have notified the Minister or his department of an address for the giving of notices. In any event, I infer from the way the notice was addressed (CB 26) that any envelope in which the notice was sent was addressed to the applicant and not to anybody else. Such a form of posting would satisfy the requirements of the Regulations: Minister for Immigration & Citizenship v SZKPQ [2008] FCAFC 21 at [22].
The applicant also relied on the decision of VEAN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 133 FCR 570 and submitted that he had never advised the department of an address to which notifications ought to be sent. He submitted that this left the department with personal service under s 494B(2) as the only option available to it to effect service upon him of notices such as the notice of cancellation. He therefore submitted that the notice of cancellation had not been given to him in accordance with the requirements of s 494B. However, VEAN's case has now been significantly limited in its operation by Minister for Immigration & Citizenship v SZKPQ. Moreover, it is quite distinguishable from this case, not least because it deals with s 494B, rather than reg 2.55."
In the present case, a copy of the envelope containing the notification letter was provided by the Respondent to the Tribunal. It was addressed to the Applicant “Mr Isaac LESIANAWAI” at the postal address for the Cooma Correctional Centre, where the Applicant was residing.
An appeal of the decision in Matete was dismissed by the Federal Court (see Matete v Minister for Immigration and Citizenship [2008] FCA 1876), however, it does not appear that the relevant issue was raised on appeal.
The Minister notes that in Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151 ("Zhang"), the Full Court of the Federal Court said the following in relation to the term "post box address" in regulation 2.55(3)(c) at paragraph [30] (Finn, Kenny and Greenwood JJ):
"The terms "post office box" appear to signify no more than a postal address known to the Minister to which communications intended for the person to be notified, can be made. Consistent with furthering the purpose of the service scheme of the
s 494B and of reg 2.55, the reasonable and appropriate construction of them is that they are simply a loose vernacular version of a type of postal address, not being a residential or a business one, to which it is known to be appropriate to correspond with the intended recipient, ie it is an address for correspondence such as the appellant supplied to the Minister and which was used by the Minister."
In Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 77 ("Singh") the Full Court of the Federal Court found that registered post is a form of prepaid post and that the object of similar provisions in the Act was:
"…a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions... should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on that person's part, does not in fact receive that notice in a timely way" – at [86] (O’Connor and Mansfield JJ).
Singh was followed by the Full Federal Court in Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172, and Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163; FCAFC 23. In the latter decision, the Full Court of the Federal Court (Dowsett, Stone and Bennett JJ) said that although deemed notification provisions may produce harsh results, they are a consequence of considered legislative intention. The Court stated at paragraph [19]
"For reasons given below, we have concluded that the decision in Xie is not wrong nor does it produce unintended or irrational consequences. The construction of s 494C(4) in Xie and the consequent rigidity of time limits imposed on applications for review may seem harsh but, as the explanatory material referred to below indicates, they result from the considered decision of the legislature as to an appropriate way to facilitate visa applications and to clarify when documents are received".
In Wilson and Minister for Immigration and Citizenship [2011] AATA 325 at [32], Deputy President Handley who had previously decided Tran, found that the reasoning in this line of three Federal Court cases is equally applicable to the construction of regulation 2.55(7).
Similarly, in Sainju v Minister for Immigration and Citizenship[2010] FCA 461 (“Sainju”), a case where regulation 2.55 of the Regulations was relevant, Jacobson J said the following at paragraphs [52] to [58] in relation to the purpose and possible outcomes of notification deeming provisions in the Act and the Regulations:
“The underlying assumption in each of the deeming provisions is that the act taken by the Minister is sufficient to bring the document to the attention of the person, regardless of whether this has actually occurred.
Thus, when a document is handed to the person, it is assumed that the person will open the envelope and read it, regardless of whether he or she actually does. Also, when a document is handed to another person at the addressee’s residence or place of business, it is assumed that the other person will give it to the named person. So too, it is assumed that the postal system will work in the ordinary way and that the addressee will receive the document within the time stated.
The same assumption is made in the deeming provision which deals with electronic communications. Thus, an email is taken to be received at the end of the day on which the Minister transmits, or sends it, to the addressee.
It may be that in an unusual case there will be unfairness because the assumption which underlies the deeming provision is not fulfilled. The other person may not hand the document to the addressee, the postal system may produce inordinate delay or the email may be lost for a period of time in cyberspace. Perhaps the document will never find its way to the addressee.
But the authorities dealing with deeming provisions in relation to non-electronic communications make it clear that the effect of those provisions is not to create a rebuttable presumption of fact. They are not to be read as if they were subject to a proviso that the person is not taken to have received the document if the contrary is proved: Xie v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 172 (“Xie”) at [13] – [14] per Spender, Kiefel and Dowsett JJ; see also the review of the authorities by Sundberg J in Minister for Immigration and Citizenship v Abdul Manaf [2009] FCA 963 at [21] – [24]; and see Tay v Minister for Immigration and Citizenship [2010] FCAFC 23 at [16] – [19] per Dowsett, Stone and Bennett JJ.
The same reasoning applies to the statutory deeming provision relating to electronic communications in reg 2.55(8). There is nothing in the language of the paragraph, particularly when read in its full context, or in the evident statutory or regulatory purpose, to suggest a different view. That is to say “by transmitting” means by sending and the person is taken to have received the document at the end of the day on which it is sent.
The purpose of provisions such as these is to achieve administrative certainty as to whether a document has been given to a person, and as to the time at which this has occurred. It affects time limits for review of administrative decisions and may, in some instances, foreclose that possibility.”
Justice Jacobson’s reasoning in Sainju was accepted by the Full Court of the Federal Court (McKerracher, Reeves and Thawley JJ) in Beni v Minister for Immigration and Border Protection[2018] FCAFC 228.
The Tribunal finds that the proposition that an applicant's lack of control over receipt of documents at a postal address somehow effects that address being considered as a person's address has no foundation in legislation. Regulation 2.55 deals with the giving of documents relating to cancellation of visas or proposed cancellation of visas. In relation to the cancellation of visas under section 501 of the Act, it will very often be the case that the intended recipients of documents will be incarcerated.
In relation to receipt of documents by post, it will often be the case that the intended recipient does not have control over the receipt of documents. If one's address was a boarding school, university residence, a hotel or any other residence at which multiple people reside, it may well be the case that there is a reliance on others to deliver a document to the person once it has arrived at the residence.
Similarly, for any large business, the receipt by an intended recipient of post mail will also depend on the people responsible for mail within the business delivering the document to the intended recipient. The lack of control by the intended recipient of mail at their residential address, business address or postal address, does not mean that it is not their residential, business or postal address and there is nothing in regulation 2.55 which supports such an interpretation.
It is also noted that, even if documents are sent to a person's residential address where under normal circumstances the person would directly receive mail, there are circumstances under which the person will have no control over receipt of documents. For example, where the person is away from home for an extended period for work, holidays etcetera. Again, the lack of control over receipt of documents in these instances does not mean that the person's residential address ceases to be their residential address.
Further, in relation to people in prison, it would appear that these people will not have control over receipt of email or facsimile correspondence. The result of this, according to the Applicant, is that the only way for a person in prison to receive documents would be by the method stipulated in regulation 2.55(3)(a), that is, handing the document to the person. The Tribunal considers that if this was Parliament's intention it would have simply stated so.
Indeed, it is clear from Zhang that the policy behind regulation 2.55 is to allow the Minister to avail himself of all the available options for giving documents under the regulation. In Zhang the Full Court of the Federal Court stated:
"15… It is also obvious from the options provided to the Minister in bringing a document to the attention of the intended recipient, that the policy of the section is to allow the Minister to avail of all of the obvious means provided by that person to the Minister that would facilitate that person's receipt of a documentary communication. That policy becomes the more apparent when one has regard to the provisions of s 494D which provides that if a person gives the Minister the name and address of another person whom he or she has authorised to receive documents in connection with matters arising under the Migration legislation, the Minister must give the authorised recipient any document that the Minister would otherwise have given the person giving the authorisation.
…
29. While a possible interpretation of ‘post office box’ is that suggested by the appellant, that interpretation does not, in our view, further the obvious purpose of the ‘service scheme’ of the Act, nor does it reflect how reg 2.55 should be construed in the context of the Act as a whole. As earlier indicated, the manifest purpose of s 494B is to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content. There is no reason to consider that reg 2.55 has some more restrictive purpose such that the Minister could not avail of an address for correspondence (or service) unless that address happened to be a post office box address. This would be a consequence of accepting the appellant's submission."
From the cases and discussion above the following principles can be distilled:
·regulation 2.55(3)(c) allows for documents to be sent by prepaid post to persons held in prison;
·regulation 2.55(7) will operate in these circumstances to deem receipt to have occurred seven working days after the date of the document if the document has been sent within three working days of the date of the document;
·the manifest purpose of regulation 2.55 is to optimise the known choices available to the Minister to communicate documents to the person intended to be notified of their content; and
·the purpose of the deemed notification provisions is, in part, to provide:
"…a scheme to achieve administrative certainty in the manner and time of giving notice of decisions made with respect to visa applications, and as to the expiry date for any application to review such decisions...should override the injustice which may occur because a particular visa applicant, sometimes entirely without fault on the person's part, does not in fact receive that notice in a timely way."
While the decision in Tran was followed in Tupe, the contrary position, that notification under regulation 2.55 can be validly effected by sending notification by prepaid post to a postal address of a prison where an Applicant is imprisoned, was adopted in a number of matters immediately following Tran.[4]
[4] See for example Gonzales and Minister for Immigration and Citizenship [2011] AATA 812 (28 September 2011) (Senior Member McCabe - Brisbane); Anaki and Minister for Immigration and Citizenship [2012] AATA 116 (8 February 2012) (Senior Member Bell - Sydney); Smith and Minister for Immigration and Citizenship [2011] AATA 777 (19 October 2011) Senior Member Handley - Melbourne); Auimatagi and Minister for Immigration and Citizenship [2012] AATA 26(19 January 2012) (Senior Member Toohey - Sydney); Scott and Minister for Immigration and Citizenship [2012] AATA 400 (9 March 2012) (Deputy President Hotop - Perth); Ngapera and Minister for Immigration and Citizenship [2012] AATA 24 (17 January 2012) (Deputy President Hotop - Perth); Logova and Minister for Immigration and Citizenship [2011] AATA 955 (22 November 2011) Deputy President Handley - Sydney); Mahia and Minister for Immigration and Citizenship [2011] AATA 789 (24 October 2011) (Deputy President Hotop - Perth); and Chadwick and Minister for Immigration [2012] AATA 529 (13 August 2012) (Senior Member Kenny).
The Tribunal considers it is bound by the decisions of the Federal Court in Ngo and the Federal Magistrates Court in Matete. The Minister notes that the decisions in Ngo and Matete do not appear to have been before Deputy President Handley in Tran. The Tribunal notes that even if the Tribunal is not technically bound by the decisions in Ngo and Matete the Tribunal would have been inclined to follow the reasoning in those decisions to the effect that regulation 2.55 allows for documents to be sent by prepaid post to persons held in prison.
Consideration of Regulation 2.55(9)
Regulation 2.55(9) provides:
“(9) If:
(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of the document;
the Minister is taken to have given the document to the person and the person is taken to have received the document:
(c) at the time specified by this regulation for that method; or
(d) if the person can show that he or she received the document at a later time--at that later time.”
In his current application to the Tribunal the Applicant indicated that he received notification of the cancellation decision on 10 October 2013. In his previous application to the Tribunal dated 30 October 2018, the Applicant indicated that he received notification of the cancellation decision on 14 October 2013. The Applicant did not provide any evidence in the form of a statement with his current application. The Applicant did not provide any direct evidence other than the dates recorded in his application forms as to when he received notification of the cancellation decision. At the hearing the Applicant’s representative attempted to give evidence from the bar table that the Applicant did not know when he received notification of the cancellation decision. The Tribunal cannot accept such assertions.
The best evidence before the Tribunal is that, based on the Applicant’s own recording of the dates on his applications for review, the Applicant actually received notification of the cancellation decision on either 10 October 2013 (as recorded in the current application), or more likely 14 October 2013 (as recorded on the previous application for review with the Tribunal). That being the case, even if the Tribunal is wrong and the Applicant could not be effectively notified of the cancellation decision by the notification letter being sent by registered post to a prison address, the effect of regulation 2.55(9)(c) is that, as the Applicant actually received notification of the cancellation decision on either 10 October 2013 or 14 October 2013, the Applicant was deemed to have received notification of the cancellation decision on 21 October 2013 (being seven business days after the date of the notification letter sent by prepaid post per regulation 2.55(7)(a)). The Applicant did not seek review of the cancellation decision until 30 October 2018, some five years’ later. The Tribunal notes that it appears that regulation 2.55(9) was not brought to the attention of Deputy President Handley in Tran.
Conclusion

The Tribunal has found that the notification letter in the present case was not affected by the type of error identified in DFQ17. The Tribunal has also found that the Applicant was correctly notified of the cancellation decision by pre-paid post under regulation 2.55.
The Tribunal finds that the decision of Senior Member Tavoularis of 8 November 2018, dismissing the Applicant’s application for review dated 30 October 2018 as not reviewable as it was made out of time, is clearly correct.
The Tribunal has found that the decision of Senior Member Tavoularis is not affected by the type of error identified in Bhardwaj and the Applicant’s previous application for review was not dismissed in error. Thus, the Tribunal has no power to reinstate that application or to remake that decision.
Decision
The Tribunal does not have jurisdiction to review the Applicant’s purported application of 20 May 2019 and the Tribunal dismisses that application pursuant to section 42A(4) of the AAT Act.
I certify that the preceding 82 (eighty-two) paragraphs are a true copy of the reasons for the decision herein of Member Tigiilagi Eteuati
...........................[SGD]............................................
Associate
Dated: 22 August 2019

Date of hearing:

14 June 2019

Solicitors for the Applicant:

Marial Lewis

Teleo Lawyers

Solicitor for the Respondent:

Rachel Noronha

Clayton Utz Lawyers