Pomare and Minister for Immigration and Citizenship

[2007] AATA 2110

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 2110

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5329

GENERAL ADMINISTRATIVE  DIVISION		)
Re		Cody Pomare

Applicant

And Minister for Immigration & Citizenship

Respondent

DECISION

Tribunal Professor GD Walker, Deputy President

Date of Decision                 19 December 2007

Date of Written Reasons  10 January 2008

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 and the application is dismissed under section 42A(4). 

…............ .......[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 29, 42A(4),43(2A)

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

Migration Regulations: 2.55)

REASONS FOR DECISION

10 January 2008   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, the respondent 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.       In this application, the applicant, Mr Cody Tamaki Pomare was born on 24 May 1968.  He is a New Zealand citizen, unmarried and has no children.  He first arrived in Australia on 26 August 2005.  He holds a class TY, sub‑class 444 special category visa.  He has remained in Australia since his arrival, except for a nine-month absence from November 2005 to August 2006. 

5.      On 15 February 2007, he was convicted at Broken Hill local court of robbery using corporal violence and was sentenced to two years and three months imprisonment with a non-parole period of 12 months.

6.      A delegate of the Minister cancelled his visa on 11 October 2007 and a notice was sent to the applicant at John Morony Correctional Centre on 11 October indicating that further information would be forthcoming.  The additional material constituting the documents required by section 501(G)(1) was hand-delivered to the applicant on 17 October 2007. 

7.      An acknowledgement, which was signed by the applicant and witnessed and is dated 17 October 2007, is in the T documents at page 2.  The notice includes, at pages 10 to 12 of the T documents, the reasons for the decision.  At pages 7 to 8 it outlines the power to seek review of the decision, including applicable time limits, and at page 9 it sets out the effect of ss 500(6H) and 500(6L) in relation to the need to lodge copies of information at least two clear business days before the hearing.

8.      Migration regulation 2.55, item 5 provides that if notice is served by hand it is taken to have been received when the notice is handed to the person.  As I have already noted, the applicant acknowledges, and it is not disputed, that the notice was handed to him on 17 October 2007.

9.      The applicant applied to this tribunal for review of the delegate’s decision.  The application for review, which is exhibit R1, is dated 18 October 2007 but was not lodged with the tribunal until 1 November 2007.  Section 500(6B) provides that an application for a review of the decision must be lodged with this tribunal within nine days after the day on which the person was notified of the decision in accordance with 501G(1).  It also stipulates that the tribunal’s normal powers to extend the time do not apply in such cases. 

10.     The ninth day after the date of service of the documents would have been 26 October 2007.  The time limit, as stipulated in section 500(6B), is fixed and inflexible, and in this case it expired on 26 October 2007.  As the application was lodged on 1 November, the respondent submits that this tribunal is without jurisdiction to hear the matter.

11.      The applicant, Mr Pomare, said that at the time the notice was served on him, he did not understand what was happening.  Later on, he obtained help from staff at Villawood and from one or more of the older inmates, but it was too late.

12.     The situation in which the applicant finds himself is an unfortunate one because the time for the application had expired when his application was lodged.  There is, however, nothing that this tribunal can do to alleviate that situation as its powers to extend time, pursuant to section 29 of AAT Act, do not apply in this case. 

13.     I must, therefore, conclude that the tribunal has no jurisdiction to hear the application and the application is dismissed on that ground, under s 42A(4).

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  19 December 2007
Date of Decision  19 December 2007  
Date of Written Reasons  10 January 2007
Representative for the Applicant                unrepresented        
Solicitor for the Respondent                     Tessa van Duyn, Clayton Utz