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

[2020] AATA 193

Nansen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 193 (17 February 2020)

Division:GENERAL DIVISION

File Number:           2020/0638

Re:Faatutala Nansen

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:17 February 2020

Place:Perth

The application 2020/0638 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to review the Non-revocation Decision.

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

Senior Member Dr M Evans-Bonner

CATCHWORDS

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

LEGISLATION

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

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

SECONDARY MATERIALS

Migration Regulations 1994 (Cth) – reg 2.55(5)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

17 February 2020

The following reasons explain why the Tribunal does not have jurisdiction to undertake the review:

1. The Applicant is a citizen of New Zealand. He is currently in immigration detention in Western Australia.

2. On 11 April 2019, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he failed to pass the character test (the Cancellation Decision).

3. The Applicant was given the opportunity to make representations about why the Cancellation Decision should be revoked, which he did. However, after considering these representations, on 16 January 2020, a delegate of the Department of Home Affairs made a decision under s 501CA(4) of the Migration Act not to revoke the Cancellation Decision (the Non-revocation Decision).

4. On 5 February 2020, the Applicant filed an application in the Tribunal seeking review of the Non-revocation Decision. 

5. Regulation 2.55(5) of the Migration Regulations 1994 (Cth) provides that if the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person. The Non-revocation Decision was hand delivered to the Applicant on 20 January 2020, as evidenced by a signed confirmation of receipt by the Applicant. Therefore, the Applicant is deemed to have received the Non-revocation Decision on 20 January 2020.

6. In summary, s 500(6B) of the Migration Act requires that if a person is in the migration zone, the application to the Tribunal for the review of a decision under s 501 or 501CA(4) of the Migration Act must be lodged with the Tribunal within nine (9) days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Migration Act.

7. On 14 February 2020, the Respondent filed a copy of the s 501G(1) decision notification documentation that was handed to the Applicant on 20 January 2020. The Tribunal has reviewed this documentation and is satisfied that the Respondent has complied with s 501G(1) and that the Applicant was properly notified. This means that the latest date that the Applicant could lodge an application for review in the Tribunal was 29 January 2020.

8. The Tribunal has no discretion to extend the time for the Applicant to make the application. This is because s 500(6B) of the Migration Act states that the relevant provisions of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) under which the Tribunal can extend the time (including ss 29(7) and (8) of the AAT Act which usually permit an Applicant to make a written extension of time application) do not apply.

9. Subsection 42A(4) of the AAT Act provides that “[t]he Tribunal may dismiss an application without proceeding to review the decision if the Tribunal is satisfied that the decision is not reviewable by the Tribunal”. As the Applicant filed his application outside of the nine day period prescribed by s 500(6B) of the Migration Act, the Tribunal is satisfied that the

   
   

   Non-revocation Decision is not reviewable by the Tribunal. Therefore, the application must be dismissed.

   DECISION

10. The application 2020/0638 is dismissed under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Tribunal does not have jurisdiction to review the

    
    

    Non-revocation Decision.

I certify that the preceding 10 (ten) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

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

Associate

Dated: 17 February 2020

Date of hearing:	12 February 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	The Australian Government Solicitor