Moana and Minister for Home Affairs (Migration)

[2016] AATA 1400

Moana and Minister for Home Affairs (Migration) [2016] AATA 1400 (17 November 2016)

Division:Migration and Refugee Division

File Number:           2016/5788

Re:Bruce Moana

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date of decision:                 17 November 2016

Date of written reasons:     9 August 2018

Place:Melbourne

The Tribunal decides that it has no power to review a decision made by the respondent dated 7 June 2016 to cancel the applicant’s Class TY subclass 444 Special Category visa.

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S A FORGIE
Deputy President

PRACTICE AND PROCEDURE – JURISDICTION – whether application made to the Tribunal for review within the prescribed time – determination of date on which the respondent’s decision was deemed to have been received by applicant – application not made within prescribed time and no power to extend that time.

Legislation

Administrative Appeals Act 1975 s 25

Migration Act 1958, ss 116, 127 338, 347, 348, 501, 501CA

Migration Regulations 1994 rr 4.10, 2.45, 2.55

Cases

Patel v Minister for Immigration and Citizenship [2012] FCA 145

Re Sesalim and Secretary, Department of Social Services [2018] AATA 384

REASONS FOR DECISION

Deputy President SA Forgie

1. On 17 November 2016, I held a hearing by telephone to determine whether the Tribunal had jurisdiction to consider a matter raised by Mr Bruce Moana in a document lodged with the Tribunal on 24 October 2016.  The document completed by Mr Moana was entitled “Request for Revocation of a Mandatory Visa Cancellation under Section 501(3A)” (Request for Revocation document) and he asked for a “Just decision”.  At the time, Mr Moana’s Class TY subclass 444 Special Category visa (444 visa) had been cancelled by a delegate of the then Minister for Immigration and Border Protection[1] (Minister) not under s 501(3A) but under s 116(1)(e) of the Migration Act 1958 (Migration Act).  The decision had been made on 7 June 2016. 

[1] Now the Minister for Home Affairs

1. Although Mr Moana used a Request for Revocation document, there is nothing to suggest that the 444 visa had been cancelled by operation of law under s 501(3A) of the Migration Act. Cancellation under that provision would have had to occur before Mr Moana could make a request for revocation under s 501CA(3) of the Migration Act. Even if cancellation had occurred under s 501(3A), it was not for the Tribunal to consider the Request for Revocation document, which addressed the issues that need to be considered under s 501CA(3). The request had to be made to the Minister. Only when a delegate of the Minister had made a decision refusing that request would Mr Moana have been entitled to make an application for review of that decision. As there is no evidence of any decision’s having been made by a delegate of the Minister under s 501CA(3), the Tribunal has no jurisdiction or authority to review a decision on that basis.

1. The only decision that I have is a decision made under s 116(1)(e) of the Migration Act. For reasons I explain below, Mr Moana made his application outside the time limit within which it could be made under the Migration Act. I had no power to extend the time. Therefore, I had no properly made application for review and so no jurisdiction or power to review the decision cancelling Mr Moana’s 444 visa.

1. I explained my reasons to both Mr Moana and Mr Brown orally and suggested he approach the then Department of Immigration and Border Protection[2] (Department) over his concerns that notice of the delegate’s decision had not been sent to him.  Having given my reasons orally at the hearing, I sent a copy of the written decision to each of them.  On 6 July 2018, Mr Moana asked for written reasons for my decision.  Although I am not required to give written reasons,[3] I do so.

   [2] Now the Department of Home Affairs

   [3] I have given my reasons for holding that view in cases such as Re Sesalim and Secretary, Department of Social Services [2018] AATA 384 at [3]-[15]

BACKGROUND

1. Mr Moana, who holds New Zealand citizenship, was granted a 444 visa on 26 May 2005.  At the time, he was 17 years of age and the visa, though temporary, permitted him to remain in Australia indefinitely while he remained a New Zealand citizen.  The Department had received information from the Victorian Police that Mr Moana had been convicted at the Werribee Magistrates’ Court on 17 February 2012 of exceeding the speed limit by 35km per hour but less than 45km per hour, unlicensed driving and use of an unregistered motor vehicle on the highway.  Victoria Police also advised that Mr Moana had been convicted at the Sunshine Magistrates’ Court on 11 September 2014 of failing to answer bail and of driving while authorisation was suspended.  Mr Moana was convicted of a further six offences on 16 June 2015 at the Sunshine Magistrates’ Court: driving while authorisation suspended; using an unregistered motor vehicle on the highway; causing criminal damage (intent to damage/destroy); unlawful assault; intentionally damaging property; and contravening a family violence intervention order with intention to cause harm or fear.  A further 14 charges were laid against Mr Moana on 15 December 2015.  They included: unlicensed driving; attempt to obtain property by deception; handle/receive/retention of stolen goods; theft of motor vehicle; burglary; and unlawful assault.

1. The delegate of the Minister sent Mr Moana a Notice of Intention to Consider Cancellation (Notice) on 11 May 2016.  He posted it to the residential address that he had obtained from the Western Australian Police as Mr Moana’s then current address and the address at which he was required to reside according to his bail conditions.  As at 7 June 2016, the letter had not been returned to the Department.  The delegate described the Notice as giving Mr Moana:

   “… the opportunity to respond if he believed that the ground for cancellation did not exist or if there were other reasons why the visa should not be cancelled.  However, the visa holder [Mr Moana] has not taken up that opportunity to provide any response or any information contrary to that provided by the police or the courts, or to otherwise contact the department to advise of his current circumstances or intentions in Australia.”

1. The delegate decided to cancel Mr Moana’s visa under s 116(1)(e) of the Migration Act on the basis that his:

   “… presence … in Australia is or may be, or would or might be, a risk to:

   (i)the health, safety or good order of the Australian community or a segment of the Australian community; or

   (ii)the health or safety of an individual or individuals;

   …”

1. The delegate set out his reasons for reaching that decision in a document called a “Decision Record”.  He sent it to Mr Moana in a letter dated 7 June 2016 and addressed to a Victorian address.  The letter set out Mr Moana’s right to apply to the Tribunal for merits review of the decision and explained that:

   “… An application for merits review of this decision must be given to the AAT within seven (7) working days after you are taken to have received this letter.

   Please note this review period is prescribed in law and an application for merits review may not be accepted after that date.

   As this letter was sent by mail from a place in Australia to an address in Australia, you are taken to have received this letter seven (7) working days after the date of the letter.  A working day does not include weekends or public holidays in the place to where this letter was posted.

   AAT reviewable decisions

   Applications for merits review can be lodged online, in person, faxed or posted to any registry of the Administrative Appeals Tribunal (AAT).

   Please note that you may only seek merits review of this decision with the AAT if you are physically present in the migration zone at the time the application for merits review is made.

   Lodgement of applications

   You can lodge your application for merits review at the following registries:

New South Wales	Victoria	Queensland	South Australia	Western Australia
…	Level 10 120 Spencer Street MELBOURNE VIC 3000	…	…	…

Review applications may also be sent by fax to 02 9276 5599 or 03 8600 5801, by email to [email protected] or [email protected], or alternatively they can be made online at information about the merits review process is available from the AAT on the Tribunal website at

1. Mr Moana sent his Request for Revocation document in accordance with the instructions in the letter, the nature of that document led the Tribunal’s Migration and Refugee Division (MRD) to refer it to its General Division on the basis that it was a decision made under ss 501 or 501CA. Given that matters arising under both s 501CA and s 116(1)(e) arose and given that one was in the General Division and the other in MRD, I heard the matter as a presidential member able to hear matters in both Divisions.

REASONING

1. Any enquiry as to whether the Tribunal has jurisdiction or authority to review a particular decision must start with s 25(1)(a)(i) of the Administrative Appeals Tribunal Act 1975 (AAT Act).  It provides:

   “An enactment may provide that applications may be made to the Tribunal:

   (a)  for review of decisions made in the exercise of powers conferred by that enactment; …”

2. It follows that I must look for an enactment that permits an application to be made to the Tribunal for review of the particular decision made in relation to Mr Moana. The particular decision in this case is that made under s 116(1)(e) of the Migration Act. If I find an enactment that permits Mr Moana to make an application and he has made that application, the Tribunal may review the decision.

3. A decision under s 116(1)(e) is one of a group of decisions known as “Part 5-reviewable decisions”. Decisions coming within that description are set out in s 338 of the Migration Act. The decision made by the delegate in this case under s 116(1)(e) comes within the particular description set out in s 338(3) for two reasons. One is that Mr Moana was in Australia, and so in the migration zone, when it was made. The second is that it was not a decision of the sort set out in ss 338(3)(a) to (d). Therefore, it was not a decision that was excluded from the scope of s 338(3).

1. As it was a Part 5-reviewable decision, Mr Moana was entitled to make an application for review of it if he complied with s 347. Compliance required that he make the application himself as he was the non-citizen, to whom the decision related.[4]  It also required that he make the application in the approved form, pay any fee that was prescribed and give it to the Tribunal within the prescribed period after being notified of the decision.[5]  Once an application has been lodged and the Minister has not issued a conclusive certificate, the Tribunal is obliged to review a Part 5-reviewable decision.[6]   

   [4] Migration Act; s 347(2)(a)

   [5] Migration Act; s 347(1)(a), (b)(i) and (c)

   [6] Migration Act; s 348

1. The period that is the “prescribed period” within which a person must make an application for review of a decision that is a Part 5-reviewable decision by virtue of s 338(3) is a period not later than 28 days after that person is notified of the decision. That does not mean that it is 28 days after that date, for the period that is the “prescribed period” is determined by the Migration Regulations 1994 (Migration Regulations). In particular, it is determined by r 4.10(b), which states that, if the decision is mentioned in s 338(3) of the Migration Act, the period starts when the person receives notice of the decision and ends at the end of seven working days after the day on which the person received the notice.

1. Mr Moana said that he did not receive the notice of the decision dated 7 June 2016.  This raises two issues.  One is whether and when he received the notice and whether he was deemed to have received the notice.  If he did receive it or was deemed to have received it and has lodged his application outside the prescribed time, the second issue is whether the prescribed time can be extended.  I will start with the second issue on the assumption that Mr Moana received the notice or is deemed to have received it.

1. The issue was considered by Marshall J in Patel v Minister for Immigration and Citizenship[7] in the context of r 4.10 and a decision that is a Part 5-reviewable decision by virtue of s 338(2) rather than s 338(3). His Honour said:

   “          Section 347 of the Act permits a review of a decision of a delegate to the Tribunal. Under s 338(2) of the Act a decision to refuse to grant a Skilled Visa is reviewable in and by the Tribunal. Section 347(1)(b) provides that an application for a review must be made within the prescribed period. Regulation 4.10 of the Migration Regulations 1994 (Cth) (‘the Regulations’) prescribes a period of 21 days to bring an application to review a decision referred to in s 338(2) of the Act where, as here, the applicant is not in immigration detention. The Regulations do not provide for an extension of the 21 day time limit, even in special or exceptional circumstances. This appears to be a deliberate choice of the framers of the regulations. An application for review of a delegate’s decision is taken to be given to the Tribunal when it is received at the Tribunal’s registry. The appellants’ application was not received at the Tribunal’s registry until 29 March 2011.”[8]     

   [7] [2012] FCA 145

   [8] [2012] FCA 145 at [7]

1. For the purpose of determining the length of the prescribed time within which an application may be lodged for review of a Part 5-reviewable decision, there is no difference between a decision that comes within that description by virtue of s 338(2) or 338(3). Therefore, the reasoning of Marshall J also leads me to conclude that I have no power to extend the time within which an application may be lodged.

1. That leaves the issue of Mr Moana’s not receiving notice of the decision at all because he was not at the address to which it was posted.  The notice of the decision had been posted to the address at which he said he would reside if he were released from detention.  That was his parents’ home address.  Mr Moana said that he was actually looking after his children at a different address and his parents did not bring the letter to his attention.

1. The way in which the Minister’s delegate was required to notify Mr Moana of the decision is the subject of s 127 of the Migration Act. When a decision is made to cancel a visa, the Minister is required to notify the visa holder in the “prescribed way”.[9]   The “prescribed way” is to notify the visa holder of the decision in writing.[10] 

   [9] Migration Act; s 127(1)

   [10] Migration Regulations; r 2.45

1. Among other matters, r 2.55 applies to the way in which a document relating to the cancellation of visa is given to that (former) visa holder.[11]  Regulation 2.55(3) provides for various ways in which the document may be given to the former visa holder.  One way is set out in r 2.55(3)(c), which provides:

   “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; …”

   [11] Migration Regulations; r 2.55(1)(a)

1. The qualification “known to the Minister” applies to each of the residential address, the business address and the post box address.  Mr Moana had acknowledged that he had advised the Department that he would be at the address, to which the notice was sent.  Therefore, the delegate of the Minister gave Mr Moana notice of the decision to cancel his visa. 

1. When the delegate decided to give Mr Moana notice of the decision by prepaid post, r 2.55(7) deemed the date on which Mr Moana was taken to have received the notice.  The notice was sent from the Department located in Australia to an address in Australia.  Therefore, r 2.55(7)(a) deemed Mr Moana to have received it seven working days after the date of the document.  Given that the date of the document was 7 June 2016, he was deemed to have received it on 16 June 2016.

1. I come now to the document that Mr Moana sent to the Tribunal on 24 October 2016. Unfortunately, I cannot treat it as an application for review of the decision made to cancel his visa under s 116(1)(e) because it does not comply with the requirements of s 347 of the Migration Act. It was not in the prescribed form, was not accompanied by the prescribed fee and had been made some four months outside the prescribed period. For the reasons I have given, I cannot extend the prescribed period within which Mr Moana could make that application. As I cannot extend the time, the Tribunal has not received an application from Mr Moana. Without an application, it has no jurisdiction or power on which it may review the decision.

DECISION

1. For these reasons, I decided that Mr Moana had not made an application for review of the decision of a delegate of the Minister in accordance with the requirements of s 347 of the Migration Act. As I had no power to vary those requirements, I could not regard the document he lodged on 24 October 2016 as an application for review of the decision to cancel his 444 visa under s 116(1)(e) of the Migration Act. Therefore, the Tribunal had no power to review that decision and I dismissed Mr Moana’s application.

I certify that the preceding twenty four [24] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie.

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Associate

Dated: 9 August 2018

Date of hearing:	17 November 2016
Applicant	Self-represented
Solicitor for the Respondent:	Mr David Brown Australian Government Solicitor