Logova and Minister for Immigration and Citizenship

[2011] AATA 955

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 955

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4663

GENERAL ADMINISTRATIVE DIVISION		)
Re		Poasa Logova

Applicant

And Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President

Date22 November 2011

PlaceSydney

Decision Pursuant to s 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to entertain Mr Logova’s application for review which is, therefore, dismissed.

.................[sgd].............................

Mr R P Handley
  Deputy President

CATCHWORDS

IMMIGRATION – visa cancellation – deemed receipt of notification – application not made within requisite time – Tribunal has no jurisdiction to entertain application.

RELEVANT ACT

Acts Interpretation Act 1091: s 36(2)

Migration Act 1958 (Cth): s 500(6B)

OTHER AUTHORITIES

Migration Regulations 1994: Reg 2.55(7)(a)

REASONS FOR DECISION

22 November 2011 Mr R P Handley, Deputy President          

1.On 28 October 2011, Mr Logova applied to the Tribunal for the review of a decision to cancel his visa. He had been notified of this decision by letter sent by registered post on 14 September 2011. On 22 November 2011, I considered the issue of whether the Tribunal had jurisdiction to entertain Mr Logova’s application and after submissions from counsel decided that the Tribunal did not have jurisdiction. I provided these written reasons at the request of Mr Logova.

2.Section 500(6B) of the Migration Act 1958 (the Act) requires that an application to the Tribunal for the review of such a decision “must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision”.

3.Pursuant to regulation 2.55(7)(a) of the Migration Regulations 1994, a person to whom the Minister gives a document by dispatching it by prepaid post is taken to have received the document seven working days after the date of the document.

4.In Mr Logova’s case, he is taken to have received notification of the cancellation of his visa seven working days after 14 September 2011, that is by 23 September 2011. He then had nine calendar days after 23 September 2011 within which to lodge his application for review with the Tribunal, that is by 4 October 2011, allowing for the fact that 2 October 2011 was a Sunday, 3 October 2011 was a public holiday and that section 36(2) of the Acts Interpretation Act 1901 permits the lodging of such a document on the day following.

5.Since Mr Logova’s application for review was lodged with the Tribunal on 28 October 2011, it was more than three weeks out of time. Pursuant to s 500(6B) of the Act, the Tribunal has no discretion to extend the time for the making of such an application.

6.The Tribunal therefore has no jurisdiction to entertain Mr Lovoga’s application which must, as a result, be dismissed.

7.Mr Lovoga was represented at the hearing by Mr M. Cavanagh of RBS Law who conceded that the Tribunal had no jurisdiction to entertain Mr Lovoga’s application.

Decision

8.Pursuant to s 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to entertain Mr Logova’s application for review which is, therefore, dismissed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.

Signed:         ............................[sgd].........................................
  Nicholas Olson, Associate

Date of Hearing        22 November 2011
Date of Decision  22 November 2011
Date written reasons requested                29 December 2011
Solicitor for the Applicant               Mr M Cavanagh, RBS Law
Solicitor for the Respondent           Ms A Collins, Minter Ellison