Nikolovski and Minister for Immigration and Border Protection (Migration)
[2018] AATA 558
•20 March 2018
Nikolovski and Minister for Immigration and Border Protection (Migration) [2018] AATA 558 (20 March 2018)
Division:General Division
File Number(s): 2018/0387
Re:Goran Nikolovski
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:20 March 2018
Place:Melbourne
The Tribunal decides that it does not have jurisdiction to consider the applicant’s application lodged on 29 January 2018.
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S A FORGIE
Deputy President
MIGRATION – mandatory visa cancellation due to substantial criminal record – refusal to revoke cancellation – applicant failed to lodge application for review in nine days of receipt of notice – nine day time limit only applied if applicant notified of decision in accordance with s 501G(1) – whether notice complied with s 501G(1) and whether given in prescribed manner Tribunal – notified of decision in accordance with s 501G – Tribunal does not have jurisdiction to review decision as lodged outside nine day time limit.
Legislation
Administrative Appeals Tribunal Act 1975 ss 25(6), 29(2)
Migration Act 1958 ss 494A, 494B, 494C, 494D, 499, 501, 501G, 501CA
Migration Regulations 1995 r 2.55
Cases
Pomare v Minister for Immigration and Citizenship [2018] FCA 458
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79; (2010) 185 FCR 129; (2010) 185 FLR 129; (2010) 269 ALR 343; (2010) 115 ALD 519
Secondary Materials
Direction No.65 made under s 499 of the Migration Act 1958
Macquarie Dictionary, Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney
REASONS FOR DECISION
Deputy President SA Forgie
On 16 June 2017, the Minister for Immigration and Border Protection (Minister) cancelled Mr Goran Nikolovski’s Class BB Return (Residence) subclass 155 visa – Five Year Resident Return visa as he was required to do under s 501(3A) of the Migration Act 1958 (Migration Act). The Minister was required to do that because Mr Nikolovski had not passed the character test because he had been sentenced to a term of imprisonment of 12 months or more.[1] Consistent with s 501CA(3)(b), the Minister invited Mr Nikolovski to make representations to him about revocation of the decision made under s 501(3A). Mr Nikolovski made those representations but a delegate of the Minister decided on 4 January 2018 not to exercise the power conferred by s 501CA(4) to revoke the decision. A letter dated 5 January 2018 was sent by email to Mr Nikolovski who was at the Fulham Correctional Centre (FCC). The email address to which it was sent was an address made available by the FCC for email communication with prisoners but only through the agency of the administrative staff.
[1] Migration Act; ss 501(3A)(a)(i), (6)(a) and (7)(c)
Mr Nikolovski was entitled to apply to the Tribunal for review of the decision to refuse revocation of the cancellation decision. His entitlement arose under s 500(1)(ba) but, under s 500(6B), he had to lodge his application within nine days after the day on which he was notified of the decision in accordance with s 501G(1) of the Migration Act. Mr Nikolovski did not lodge his application for review until 29 January 2018. As the Tribunal has no power to extend the nine day time limit,[2] that would ordinarily lead to the conclusion that it has no jurisdiction to consider his application. The Minister’s decision to cancel his visa would continue to be in force and unreviewable. There is, however, a question whether the decision refusing to revoke the cancellation decision had indeed been given in accordance with s 501G(1). If it has not been given in that way, the nine day time limit imposed by s 500(6B) does not apply and Mr Nikolovski would, under s 29 of the Administrative Appeals Tribunal Act 1975 (AAT Act) have had the usual 28 days within which to lodge an application for review. He would have met that lengthier time limit.
[2] In reaching this conclusion, I adopt the reasons I gave in Re Singh and Minister for Immigration and Border Protection [2017] AATA 2031
I have decided that the decision made by the delegate of the Minister under s 501CA was notified in accordance with s 501G(1). Therefore, the nine day time limit did apply and Mr Nikolovski did not lodge within those nine days. Therefore, the Tribunal does not have jurisdiction to consider his application.
THE SUBMISSIONS
On behalf of the Minister, the submission has been made that it is enough that Mr Nikolovski acknowledged that he had received the decision on 5 January 2018. Furthermore, it is not necessary that the Minister advise Mr Nikolovski of all of the means by which he could make an application to the Tribunal. This submission, Mr Ray stated at the resumed hearing, is consistent with the judgment of the Full Court of the Federal Court in SZOFE v Minister for Immigration and Citizenship[3] (SZOFE). Mr Ray did not address the earlier case of Pomare v Minister for Immigration and Citizenship[4] decided by North J. I had drawn that case to Mr Aviram’s attention at the earlier hearing when he represented the Minister. Both Mr Aviram and Mr Ray submitted that the Tribunal cannot consider Mr Nikolovski’s application as it was made outside the nine day time limit imposed by s 500(6B) of the Migration Act.
[3] [2010] FCAFC 79; (2010) 185 FCR 129; (2010) 185 FLR 129; (2010) 269 ALR 343; (2010) 115 ALD 519; Emmett, Buchanan and Nicholas JJ
[4] [2018] FCA 458
Mr Nikolovski has consistently stated that he did not receive a notice advising him where he should make his application for review. It was not in the bundle of documents that he was handed by the administrative officer at the FCC. Furthermore, the decision made by a delegate of the Minister was not sent to the email address that he had provided when completing the Personal Circumstances Form on 29 June 2017. The email address he gave was that of his partner whom he authorised the then Department of Immigration and Border Protection (Department) to contact regarding his case. He did not authorise the Department to send any material to the FCC’s email address. Had the decision been sent to his partner’s email, it would have been dealt with properly, Mr Nikolovski told me. As it was, he was given the documents in the form in which he lodged them and he understands that the facsimile machine is used by four offices. Documents sent to FCC can be picked up accidentally. Mr Nikolovski said that he did not receive a notice advising him where he should lodge his application for review.
LEGISLATIVE BACKGROUND
Time within which an application must be made
As a general rule, a person wishing to apply to the Tribunal for review of a decision has 28 days from the day on which a document setting out the terms of the decision and setting out findings on material questions of fact and reasons for that decision is given to him or her. That general rule is found in s 29(2)(a) of the AAT Act. Any enactment that provides that an application may be made to the Tribunal may also include provisions adding to, excluding or modifying the operation of any of the provisions of, among others, s 29.[5]
[5] AAT Act; s 25(6)
In so far as a decision made under s 501CA(4) is concerned, s 500(6B) provides:
“If … a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa relates to a person in the migration zone, an application 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). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.”
How the Minister must notify the person of the decision
A. The information that must be set out in the notice
The Migration Act makes specific provision for notification of a range of decisions including those made under s 501CA not to revoke a decision to cancel a visa that has been granted to a person.[6] Section 501G(1) goes on to provide that, in relation to those decisions:
[6] Migration Act; s 501G(1)(ba)
“… the Minister must give the person a written notice that:
(c)sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non-disclosable information) for the decision; and
(f)if the decision was made by a delegate of the Minister under … section 501CA and the person has the right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone – sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.”
If the Minister has not only made a decision under the relevant section, being s 501CA in this case, but it is reviewable by the Tribunal and relates to a person in the migration zone, s 501G(2) further provides:
“… the notice under subsection (1) that relates to the decision must be accompanied by 2 copies of every document, or part of a document, that:
(d) is in the delegate’s possession or under the delegate’s control; and
(e) was relevant to the making of the decision; and
(f) does not contain non-disclosable information.”
B.How the Minister must give notice under section 501G(1)
Section 501G(3) provides that:
”A notice under subsection (1) must be given in the prescribed manner.”
What is the prescribed manner for giving that notice?
B.1 Methods specified under sections 494A and 494B
The methods provided for under ss 494A and 494B are not prescribed methods for the purposes of s 501G(2) but are relevant in understanding the case of SZOFE and also the way in which notice of the decision was given to Mr Nikolovski.
Section 494B sets out methods by which the Minister may give a document to a person. It applies when one of the provisions of the Migration Act or of the Migration Regulations 1995 (Migration Regulations) requires or permits the Minister to give a person a document by one of the methods specified in that section. That is not the situation in this case.
Section 494A applies more generally. Section 494A(1) provides:
“If:
(a)a provision of this Act or the regulations requires or permits the Minister to give a document to a person; and
(b) the provision does not state that the document must be given:
(i) by one of the methods specified in section 494B; or
(ii)by a method prescribed for the purposes of giving documents to a person in immigration detention;
the Minister may give the document to the person by any method that he or she considers appropriate (which may be one of the methods contained in subparagraph (b)(i) or (ii) of this section).
Note: Section 494D deals with giving documents to a person’s authorised recipient.”
Sections 494A(2), (3) and (4) are concerned with giving a document to a minor and do not apply in this case.
As the Note to s 494A(1) states, s 494D is concerned with giving documents to a person’s authorised recipient. I will set out s 494D(1) as it gives the flavour of the provision:
“If a person (the first person) gives the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to receive documents in connection with specified matters arising under this Act or the regulations, the Minister must give the authorised recipient, instead of the first person, any documents in connection with those matters that the Minister would otherwise have given to the first person.
Note:If the Minister gives a person a document by a method specified in section 494B, the person is taken to have received the document at the time specified in section 494C in respect of that method.”
Section 495 provides that:
“The Minister may, in writing, approve a form for the purposes of a provision of this Act in which the expression ‘approved form’ is used.”
The term “approved form” is not used in s 494D. The Department has prepared Form 956A entitled “Appointment or withdrawal of an authorised recipient” but it does not require that it be used. It begins with a statement that “This form should be used to notify the Department … that you are: appointing an authorised recipient …; or withdrawing the appointment …”.
Section 494C makes provision for the time at which a person is taken to have received a document from the Minister when given that document by one of the means provided for in s 494B as well as s 494A. Only s 494C(7) is relevant:
“If:
(a)the Minister purports to give a document to a person in accordance with the method specified in section 494B (including in a case covered by section 494A) but makes an error in doing so; and
(b) the person nonetheless receives the document or a copy of it;
then the person is taken to have received the document at the times mentioned in this section as if the Minister had given the document to the person without making an error in doing so, unless the person can show that he or she received it at a later time, in which case, the person is taken to have received it at that time.”
B.2 The prescribed manner of giving notice of the decision
Section 501G does not require or permit the Minister to give a person notice of a decision under s 501CA by one of the methods specified in s 494B. Instead, s 501G(3) states that a notice under s 501G(1) must be given in the prescribed manner. The prescribed manner is to be found in the Migration Regulations.
Division 2.10 of Part 2 of the Migration Regulations is concerned with giving documents relating to cancellation of visas. In particular, unless a person is in immigration detention,[7] and Mr Nikolovski was not at the relevant date, r 2.55 applies to the giving of a document under s 501G(3) relating to a decision not to revoke a decision to cancel a visa under s 501CA of the Migration Act.[8] The effect of r 2.55(4) is that the document relating to the decision not to revoke the cancellation of his visa had to be given to him in one of the ways specified in r 2.55(3):
[7] Migration Regulations; r 2.55(2)(b)
[8] Migration Regulations; r 2.55(1)(b)(ii)
“Subject to subregulation (3A), … the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b)by handing it to another person who:
(i)is at the person’s last residential or business address known to the Minister; and
(ii)appears to live (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(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;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
Note:Subregulation (3A) deals with giving documents mentioned … to minors.”
Regulation 2.55(8) of the Migration Regulations provides:
“If the Minister gives a document to a person by transmitting it by fax, e-mail or other electronic means, the person is taken to have received the document at the end of the day on which the document is transmitted.”
Regulation 2.55(9) provides for the situation in which the Minister has purported to give a document in accordance with r 2.55 but has not. It states:
“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.”
NOTIFICATION OF THE DECISION UNDER SECTION 501CA
In this section of my reasons, I will set out my findings regarding the form of the notification of the decision made in relation to Mr Nikolovski’s request that the cancellation decision made under s 501(3A) be revoked. My findings are based on the documents that have been lodged by Mr Nikolovski and the separately organised, but same documents, lodged on behalf of the Minister
Form in which documents presented
Mr Nikolovski lodged his application with one set of the documents he was handed by the FCC with the decision of the delegate of the Minister (G documents). Section 500(6C) requires him to do that. The documents that he lodged are not ordered in the way in which the copy that the Department sent separately to the Tribunal to support its contention that it had sent him all that it should have. I will give a flavour of the way in which the copy Mr Nikolovski lodged was ordered. Mr Nikolovski said that they came to him in that form and I accept his evidence. That is not to say that the Department sent them to him at the FCC in that form but it is to say that is how he received them.
Both sets of documents start with the letter addressed to Mr Nikolovski dated 5 January 2018. The lodged copy then has pages 2 and 3 from what would appear to be the Department’s letter to Mr Nikolovski inviting him to ask that the decision to cancel his visa be revoked. It is followed by a Statement of Reasons for the decision made under section 501CA refusing to revoke the cancellation decision made under s 501(3A).
Both sets of documents then continue to reflect each other until the Department’s letter dated 16 June 2017 to Mr Nikolovski begin. Both have page one but, whereas the Department’s copy has pages 2 to 5 of the letter, the lodged copy does not. After page 1 appears page 2 and then page 1 of a document entitled “The effect of section 500(6A) to section 500(6L) of the Migration Act 1958”. Pages 2 and 3 appear at an earlier position as I have mentioned in the previous paragraph and I have not located pages 4 and 5 in the set.
The next document in the lodged set is, included in reverse order of page 2 and then page 1 of a document entitled “How to apply for merits review by the Administrative Appeals Tribunal”. I will return to the contents of this document later in these reasons. At this stage, I note that the same document appears at the end of the bundle and is followed only by the document entitled “The effect of section 500(6A) to section 500(6L) of the Migration Act 1958”. It appears in its correct page order.
The letter dated 16 June 2017 states on its face that other documents are attached. Most of these are not included in the bundle of documents. I make no particular point about their omission except for Direction No. 65. That is said to be included in the letter dated 16 June 2017 and I would expect it to be included on the basis that it is a “source document” considered by the decision-maker and referred to in the letter dated 5 January 2018. Direction No. 65 appears in the lodged set running backwards from pages 33 to 1. It appears in the Department’s as the document immediately preceding the document entitled “How to apply for merits review by the Administrative Appeals Tribunal” and running from pages 1 to 33. In both sets, only the odd numbered pages are reproduced i.e. 1 to 33 but not 2 to 32.
The next two pages in the set of documents as lodged appear to be a reproduction of s 501 but, again, they are back to front and clearly come from another document as the pages are numbered 4 and 3. They appear to come from a letter written by the Department to Mr Nikolovski dated 30 August 2007.
Form of notice stating where the application for review can be made
Mr Nikolovski said that he did not receive a notice of where he should lodge the application for review. While I accept that he may not have received it in the copy of the G documents that he kept, I do not accept that he was not given the notice. There was a notice in the copy of the G documents that he sent to the Tribunal. Therefore, he must have received the notice in that copy even if it were not included in the other.
The notice stated that:
“To apply to the Administrative Appeals Tribunal (AAT) for a review of the decision, you can either:
· apply online;
·write a letter or email to the AAT and explain the details of the decision and the reasons you seek a review; or
·complete an application form obtainable from the AAT which outlines all of the information required.
Regardless of which method you use, your application must contain a statement of reasons explaining why you are making the application for review.
If you are in the migration zone (i.e. Australia) your application for review must be accompanied by a copy (or the original) of the document notifying you of the decision plus a set of the documents given to you at the time of notification of the decision. Unless you do this your application for review will be invalid.[[9]]
A list of the addresses of the AAT offices [sic] in Australia is enclosed. There is a fee payable when you apply for a review. More information about fees can be obtained from the AAT.”
[9] I note that this statement is not supported by the Federal Court’s judgment in Hall v Minister for Immigration and Multicultural Affairs [2000] FCA 415; (2000) 97 FCR 387; 59 ALD 458; 31 AAR 62; Finkelstein J.
The notice went on to set out the street addresses, mail box addresses and facsimile addresses of each of the Tribunal’s six mainland Registries and gave the same details for the Registry Office of the Supreme Court of Norfolk Island. The street address for the Victorian Registry was incorrect and had been since mid December. Its telephone and facsimile numbers were no longer current but were operable as they had been redirected by the Tribunal to another number. No email address was given for the purpose of making an application by email[10] and, although the recipient of the notice was advised that an application could be made online, the Tribunal’s website address was not included.[11]
[10] The email address at which applications may be lodged for review of a decision in the Tribunal’s Divisions other than the Migration and Refugee Division and the Social Services and Child Support Division is [email protected].
[11] aat.gov.au
The notice did set out a national local-call-fee-only number: 1800 228 333. If a person called that number, the call would be put through to the capital city of the State in which the call was made or, if made from the Northern Territory or the northern rivers region of New South Wales, to Brisbane. A number was given for a telephone typewriter service for the deaf and hearing impaired[12] and a number given for the Translating and Interpreting Service if the help of a translator or interpreter was required.
[12] An 1800 number is given but it is not the number currently appearing on the Tribunal’s website.
Address to which the notice of the decision and documents sent
The Minister sent the documents to Mr Nikolovski using the email address at the FCC. This is the email address from which Mr Nikolovski had sent written material to the Department on 12 July 2017, 3 August 2017 and 1 December 2017. The G documents contain two of Mr Nikolovski’s hand written notes asking the administration staff at FCC to send material to the Department on one of those dates – 1 December 2017 – and 8 December 2017. The staff have done that using the email address that the Department has used in corresponding with him and, in particular, used to send notice of the decision to Mr Nikolovski on 5 January 2018.
When responding to the Minister’s invitation to explain why the decision to cancel his visa should be revoked, Mr Nikolovski provided an email address and ticked the relevant box indicating that he agreed to the then Department of Immigration and Border Protection’s (Department) communicating with him by email. He also gave his current residential address as the FCC and set out his partner’s telephone numbers and address where he intended to reside on his release if the cancellation of his visa were revoked. The email address would seem to be that of his partner. From the G documents lodged with Mr Nikolovski’s application for review in the Tribunal, that email address would seem to be the last one he gave to the Department but not the last one that he used.
WAS MR NIKOLOVSKI NOTIFIED OF THE DECISION UNDER SECTION 501CA IN ACCORDANCE WITH SECTION 501G(1)?
The question in the heading to this section of my reasons reflects the condition that must be satisfied before s 501(6B) requires a person who is seeking review of the decision to lodge an application for that review within nine days after the day on which he or she was notified of the decision. It is a question with two parts. One part relates to the form of the notice and the other part to the manner in which it was given.
Was the notice in accordance with s 501G(1)?
I have already decided that Mr Nikolovski was given notice of the decision and so satisfies s 501G(2) but the question that remains is whether he was notified of it in accordance with s 501G(1). There is no doubt that the notice stated that the decision could be reviewed by the Tribunal as that was stated on the first page of the two page covering letter setting out the delegate’s decision. In the circumstances of this case, the more precise question to be asked is whether the document he was given complied with s 501G(1)(f)(iv) i.e. did it state “… where the application for review can be made”.
Given that s 501G(1)(f)(i) required that the notice given to Mr Nikolovski stated that the decision could be reviewed by the Tribunal. Therefore, when s 501G(1)(f)(iv) requires the Minister to give written notice stating “… where the application for review can be made” (emphasis added), it must require the Minister to do something more than what is required by s 501G(1)(f)(i). That would be consistent with the ordinary meanings of the word “where” used as an adverb as it is. Those meanings are “… in or at what place …”.[13] Adopting that meaning, the requirement in s 501G(1)(f)(iv) would include a requirement to set out the physical place at which a person may make an application. Given that many bodies, including the Tribunal, have both a physical presence and an electronic presence, the next question is whether the word “where” is intended to extend to “where” an application for review can be made in both the physical and electronic sense. Given that the Migration Act recognises both physical, be they personal or by post, and electronic means of giving a notice to a person, and given that the Tribunal permits applications to be made by lodging an application personally at a Registry, by mail or by electronic means, it seems to me that s 501G(1)(f)(iv) required the notice to give those details to Mr Nikolovski.
[13] Macquarie Dictionary, Fifth Edition, 2009, Macquarie Dictionary Publishers Pty Ltd, Sydney
Apart from being told that he could apply to the Tribunal for review, Mr Nikolovski said that he was never given any information about where he could make his application. Although he was told on the second page of the letter that an Information Sheet entitled “How to Apply for Merits Review in the AAT” was enclosed with the letter, he said that he did not receive that sheet. I did find the Information Sheet in the copy of the G Documents lodged with his application. It is roughly in the middle of the papers but the pages are out of order in that section of the G documents. The copy of Direction No. 65 is, for example, reproduced in a back to front form and the letter from the Department to Mr Nikolovski dated 16 June 2017 appears to have only its first page. The Notice setting out the effect of ss 500(6A) to 500(6L) is also reproduced in a back to front format as is the Information Sheet.
Despite the errors and omissions in the Information Sheet that I have noted in [29] to [31] above, I am satisfied that the documents satisfied the requirements of s 501G(1)(f)(iv) in so far as it states that an application can be sent by mail to the Tribunal. He was also told that he could apply for review online. Even though the website address for the Tribunal was not given, a Google search returns its website. That website sets out the way in which an application may be made for review. The “Applying for review” directs attention to the Tribunal’s General Division for review of decisions made under, among others, s 501CA of the Migration Act. There is enough in the Information Sheet to satisfy the requirement in s 501G(1)(f)(iv) that it state where an application for review can be made. The notice otherwise meets the requirements of s 501G(1)(c), (d) and (e). This is so whether Mr Nikolovski was able to do the search himself or had to ask for it to be done for him by the FCC’s administrative staff.
Has the notice of the decision under section 501CA been sent in accordance with section 501G(1)?
If the notice of the decision made under s 501CA has not been sent to Mr Nikolovski in accordance with s 501G(1), it remains a valid decision. That is the effect of s 501G(4). What is affected is the time limit within which he was required to lodge his application for review. If Mr Nikolovski was not notified in accordance with s 501G(1), he is not limited to a nine day window from the date he received the notification as provided in s 500(6B) but has the full 28 days allowed under s 29 of the AAT Act. This follows from the fact that the nine day window only applies if he was notified in accordance with s 501G(1). That conclusion is supported by the judgment of Lindgren J in Pomare v Minister for Immigration and Citizenship.[14]
[14] [2008] FCA 458; (2008) 167 FCR 494; 47 AAR 341
Despite the fact that Mr Nikolovski stated that he agreed to the Department’s communicating with him by email and despite giving an email address, the Department sent the notice of the decision not to revoke the cancellation to an address associated with the FCC. The Department did not send it to his nominated email address. Has it given the notice required to be given by s 501G(1) in the “prescribed manner” as required by s 501G(2)? When sent by email, the prescribed manner set out in r 2.55(3)(d)(ii) is that the notice is sent to the “last … e-mail address … known to the Minister”.
While his nominated email address is the last email address that Mr Nikolovski gave to the Department as an email address for communications, it is not the last email address he used in his communications with the Department. Through the agency of the FCC’s administrative staff, Mr Nikolovski had both sent and received emails using the FCC’s email address. There is no material in the documents that I have that suggests that he used his nominated email address.
I am satisfied, therefore, that the notice was given in a prescribed manner as required by s 501G(3). In reaching that conclusion, I notice it is not to the point that Mr Nikolovski received the documents. In the context of deciding whether the nine day time limit applies under s 500(6B), the only relevant question is whether the person was notified of the decision in accordance with s 501G(1). Provisions, such as that in r 2.55(9) of the Migration Regulations, deeming a document to have been given in prescribed circumstances even when an error has been made but when the person actually receives do not play any role. Section 500(6B) comes into play when the person “was notified” and leaves no room for deemed notification.
DECISION
For the reasons I have given, I am satisfied that Mr Nikolovski was notified of the decision made by a delegate of the Minister under s 501CA in accordance with s 501G(1). Therefore, the provisions of s 500(6B) required him to lodge his application for review within nine days after the day on which he was notified of the decision i.e. 5 January 2018. As he did not lodge his application until 29 January 2018, he is outside that time limit and the Tribunal does not have jurisdiction to review the decision.
| I certify that the preceding forty three [43] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
....................[sgd]..............................................
Associate
Dated: 20 March 2018
| Date of hearing: | 16, 24 and 28 February 2018 14 March 2018 |
Applicant: | Unrepresented |
| Solicitor for the Respondent: | Mr Tal Aviram Mr Adam Ray Clayton Utz |
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