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

[2020] AATA 2877

Osmond and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2877 (6 August 2020)

Division:GENERAL DIVISION

File Number:          2020/4254

Re:Shane Osmond  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President Boyle

Date:6 August 2020

Place:Perth

The application 2020/4254 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]...................................

Deputy President Boyle

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

Deputy President Boyle

6 August 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 prison in Western Australia.

2. On 4 February 2020, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act) on the basis that he failed to pass the character test (the Cancellation Decision).

3. The Applicant made representations about why the Cancellation Decision should be revoked. After considering these representations, on 28 May 2020, a delegate of the Respondent made a decision under s 501CA(4) of the Act not to revoke the Cancellation Decision (the Non-revocation Decision).

4. A copy of the Non-revocation Decision and the other documents required by s 501G of the Act were hand delivered to the Applicant on 11 June 2020, as evidenced by a signed confirmation of receipt by the Applicant. 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. Therefore, the Applicant is deemed to have received the Non-revocation Decision on 11 June 2020.

5. On 16 July 2020, the Applicant filed an application in the Tribunal seeking review of the Non-revocation Decision. 

6. The Respondent seeks the dismissal of the application pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

7. Section 500(6B) of the Act provides that if a person whose visa is cancelled is in the migration zone, the application to the Tribunal for the review of a decision under s 501 or s 501CA(4) of the 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 Act.

8. The Tribunal has reviewed the documentation and is satisfied that the Respondent has complied with s 501G(1) and s 501(2) of the Act and that the Applicant was properly notified and served with the required documents.

9. The latest date that the Applicant could lodge an application for review in the Tribunal in accordance with s 500(6B) of the Act was 22 June 2020.

10. The Tribunal has no discretion to extend the time for the Applicant to make the application. Section 500(6B) of the Act provides that the provisions of the AAT Act under which the Tribunal can extend the time (including ss 29(7) and (8) of the AAT Act which permit an Applicant to make a written extension of time application) do not apply to applications to review decisions under s 501CA(4) of the Act not to revoke cancellation of a visa.

11. 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 Act, the Tribunal is satisfied that the Tribunal does not have jurisdiction and that the Non-revocation Decision is not reviewable by the Tribunal. The application must, therefore, be dismissed.

    DECISION

12. The application 2020/4254 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 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle

.................................[SGD]................................

Associate

Dated: 6 August 2020

Date(s) of hearing:	6 August 2020
Applicant:	In person
Counsel for the Respondent:	Mr A Gerrard
Solicitors for the Respondent:	Australian Government Solicitor