Otineru and Minister for Immigration and Citizenship

[2007] AATA 1939

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1939

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2007/4148

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Carlos Otineru

Applicant

And Minister for Immigration & Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date of Decision                 30 October 2007

Date of Written Reasons  12 November 2007

Place  Sydney

Decision For the reasons given orally at the hearing of this matter the Tribunal’s decision is that it has no jurisdiction to hear this matter. 

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

Professor GD Walker
   Deputy President.

CATCHWORDS … Jurisdiction –  visa cancellation - application filed out of time – no discretion can be exercised by the tribunal – tribunal cannot grant an extenstion of time – tribunal has no jurisdiction to hear this matter.

LEGISLATION

Administrative Appeals Tribunal Act 1975: s 43(2A)

Migration Act 1958: ss 500(6B), 501(2)

Migration Regulations: 2.55(3)(D), 2.55(8)

REASONS FOR DECISION

12 November 2007 Professor GD Walker, Deputy President

1. At the conclusion of the interlocutory hearing of the above matter the terms of the decision intended to be made and the Deputy President’s reasons were stated orally. After service upon the applicant and the respondent of a copy of the decision that was in fact made, both parties pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to furnish to them a statement in writing of the reasons of the Tribunal for its decision.

2.      The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the style of an extempore decision, they are in fact the reasons for the decision.

3.      The transcript is reproduced in the following paragraphs.

4.      The applicant Carlos Otineru was born in Samoa on 12 May 1983 and is a citizen of New Zealand.  He first entered Australia on 26 September 1997 on a Class TY subclass 444 Special Category Visa at the age of 14.  He has not left Australia since.  On 10 June 2005 he was convicted at the District Court at Burwood, New South Wales, on two counts of aggravated breaking and entering with intent, and sentenced to a total of five years and six months imprisonment with a non-parole period of two years. 

5.      It is not disputed that on 14 August 2007 the respondent by fax duly notified the applicant at John Moroney Correctional Centre where he was serving his sentence, that his visa had been cancelled pursuant to section 501(2) of the Immigration Act.  The applicant signed an acknowledgement, which was witnessed and dated 14 August 2007 and it is reproduced at page 4 of the G documents.  As the applicant was not in immigration detention at the time, Migration  Regulations 2.55(3)(D) and 2.55(8) applied.  Paragraph 8 states that if the Minister gives a document to a person by fax or by certain other means, the person is taken to have received the document at the end of the day on which the document is transmitted.   Applying that to the present case means that at the end of 14 August 2007, or in other words, sometime before 00 hours on 15 August, the applicant received the notice.  It was not disputed that he was served on the 14^th August

6. It is also not disputed that the ninth day after service of that document and the accompanying document, as required by the Act, was 23 August 2007. By 23 August the applicant had not lodged with the tribunal an application for a review of a decision as contemplated by section 500(6B) of the Migration Act 1958. An application was lodged the following day, on 24 August 2007, and there are certain statements to that effect in evidence from Ms Stewart, the welfare officer at John Moroney Correctional Centre. Those statements are not disputed.

7.      Ms Stewart has put a great deal of effort into assisting the applicant with his application, and generally, and appears before the tribunal today to represent him.  She submits that the nine-day period did not commence to run, in her understanding, until 16 August 2007 because the respondent did not receive the applicant’s signed acknowledgement until 16 August.  It does appear to be correct that the respondent did not receive the acknowledgement until that date.  I interpret Ms Stewart’s argument also as submitting that the departmental officer had, informally in some way, granted the applicant an extension of time in which to deliver the acknowledgement to the department.

8. Accepting that and assuming it to be correct, the fact remains that in light of the legislation, the date on which the respondent received the applicant’s acknowledgement does not affect the commencement of the running of time for the purposes of section 500(6B) It is also apparent from that subsection that this tribunal has no power to extend the time for lodgment of an application for review of the decision to cancel the visa. The powers that it normally has to extend time in that way are expressly taken away in this context by section 500(6B)

9.      The parties, as I have indicated, are at one on the proposition that the application for review was received by the tribunal on 24 August and is date stamped, for some reason, several days later, on the 29^th.  But there is no doubt on the evidence that it was received on the 24^th August.  Ms Van Duyn submits that by reason of those facts, the application was one day out of time and submits further that as the tribunal has no power to extend time and nobody else has any power to extend time, this tribunal has no jurisdiction to hear the application.  Ms Stewart points out that the applicant is and has been an inmate of John Moroney and, as she puts it, at the mercy of those who can help her to help him.

10.     Ms Stewart had many preoccupations at the time, including seven other visa cancellation matters, and had difficulty obtaining access to a fax machine which would have enabled her to communicate more expeditiously with the respondent.  Her belief was that the time ran from the date the respondent received the acknowledgement and that therefore the time expired on 25 August, not the 23^rd August. It is quite understandable that a non-lawyer would be under a misunderstanding about the commencement and the expiration of time limits in this context, which is a very technical context, laying down very specific rules and in relation to which this tribunal has no discretion.

11.     Ms Stewart asked for compassion on behalf of the applicant, having worked with him over an extended period and having found that he has not denied his wrong-doing and that he wishes to rehabilitate himself and make a fresh start.  Ms Stewart also submits that even the senior people responsible for security in the correction system do not fully understand the workings of the visa cancellation process. 

12.     Ms Van Duyn acknowledges that the result that she submits is correct is an unfortunate one but is the inevitable result of the strict and inflexible nature of the rules described in this area. 

13.     I conclude that the application for review was in fact filed one day out of time and consequently this tribunal has no jurisdiction to review the Minister’s decision.  I can only say that I am sorry that this result flows from the point of view of the applicant and despite the diligent and consistent efforts on his behalf by Ms Stewart, I am afraid that is the result and I have no power to proceed further.

I certify that the 13 preceding paragraphs are a true copy of the reasons for the decision herein of Professor GD Walker.

Signed:         ........ ……[sgd]………………………….. .........
  Associate

Date/s of Hearing  30 October 2007
Date of Decision  30 October 2007      
Date of Written Reasons  12 November 2007
Representative for the Applicant               Kathleen Stewart     
Solicitor for the Respondent                     Tessa van Duyn, Clayton Utz