QDSN and Minister for Immigration and Citizenship

[2013] AATA 352

[2013] AATA 352

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2006
Re	QDSN
APPLICANT
And	MINISTER FOR IMMIGRATION AND CITIZENSHIP
RESPONDENT

INTERLOCUTORY DECISION

Tribunal	PROFESSOR RM CREYKE, SENIOR MEMBER
Date	28 May 2013
Place	Canberra

The application is dismissed for no jurisdiction

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Professor RM Creyke, Senior Member

Catchwords

PRACTICE AND PROCEDURE – jurisdiction – whether Tribunal has jurisdiction – decision to cancel visa made pursuant to section 501(2) of the Migration Act 1958 – application for review not lodged with the Administrative Appeals Tribunal within nine days from the day after notification was received in accordance with section 500(6B) of the Migration Act 1958

Legislation

Migration Act 1958 (Cth) sections 5, 500, 501 and 501G

Migration Regulations 1994 (Cth) regulations 2.55 and 5.02

Ministerial Direction 55

Cases

Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

Wilson v Minister for Immigration and Citizenship [2012] FCA 1421

REASONS FOR INTERLOCUTORY DECISION

Professor RM Creyke, Senior Member

28 May 2013

1. The applicant arrived in Australia in 2003. He had been granted a Class XB Subclass 202 (Global Special Humanitarian) visa. He has a wife and child in Australia from whom he is estranged. Since arriving in Australia the applicant has been convicted of a number of assault offences and has been imprisoned several times.

2. The applicant was sent a Notice of Intention to Consider Cancellation letter dated 23 September 2010.  He responded with a written submission received on 8 October 2010.

3. Following receipt by the Department of Immigration and Citizenship (Department) of a National Police Certificate, dated 12 January 2012, that is, a certificate that lists the disclosable criminal history information of a person that is available on the day it is issued, the Department sent a letter to the applicant dated 10 February 2012 containing the Certificate and giving him the opportunity to comment. On 2 April 2012, the correspondence was returned unclaimed. The correspondence was next sent to the applicant’s new address. On 8 May 2012, the correspondence was returned unclaimed from that address. The applicant did not respond to the letter, nor did he answer telephone calls to what has been ascertained is his current mobile number.

4. On 12 July 2012, the Department made further unsuccessful attempts to contact the applicant on three of his listed telephone contact numbers. Subsequently, an International Obligations Humanitarian Country Assessment dated 12 July 2012 was sent to him for comment. He did not respond to this or later correspondence including further copies of the National Police Certificate and the International Obligations Humanitarian Country Assessment. However, on 18 September 2012, the applicant did return a signed copy of the Notice of Intention to Consider Cancellation letter of 23 September 2010. On this occasion he also confirmed his address.

5. On 24 April 2013, while the applicant was in custody, a letter from the Department was hand delivered to him informing him that a delegate of the Minister had decided to cancel his visa under section 501(2) of the Migration Act 1958 (Cth). On that day, the applicant signed an acknowledgement that he had received the notification.

6. That letter advised the applicant that he was entitled to have the decision reviewed by the Tribunal. If he wished to do so, however, he had to lodge his application for review within nine days after the date on which he was notified of the decision to cancel his visa. The letter advised that an application form was obtainable from the Tribunal. He was also advised that the form could be downloaded from the Tribunal website. An 1800 number was provided to ring the Tribunal free of charge. As the letter was hand delivered it was taken to be received on 24 April 2013. Information about how to apply to the Tribunal and the address of the Tribunal, including the address of this Tribunal Registry, was included in the hand delivered material.

7. On 6 May 2013, the Tribunal received an application for review from the applicant.  Nine days after the 25 April 2013, being the day after he had received notification of the cancellation of his visa, was the 3 May 2013. The applicant’s application was accordingly out of time.

8. On 22 May 2013, an interlocutory hearing was held to discuss whether the Tribunal could hear the application for review, given that the application was received out of time. At the hearing the applicant was assisted by his case manager in custody and an interpreter. A solicitor representing the Minister was also present.

9. The Tribunal asked the applicant’s case officer to ascertain when the notification letter was received by the applicant. He replied by email on 22 May 2013, saying he had been unable to do so. The case officer also advised in the email that he could not confirm the date the applicant requested the number for the Tribunal be added to his account.  However, he did confirm that the applicant’s request was first assessed on 26 April 2013, and was added to his account on 29 April 2013. The custodial establishment only permits prisoners to telephone those listed on their account. It is not known whether they must also register 1800 numbers.

10. The case officer advised that ‘a delay of 1-2 days between the number being added to the account and a detainee being notified of that outcome is entirely plausible’. The records indicated that the applicant’s first call to the Tribunal was on Wednesday 1 May 2013. The applicant said he had received a document on a Friday and had sent it to the Tribunal on the Monday.

11. The representative for the Minister submitted that the nine day time limit may be harsh but it was a strict time limit and the applicant’s failure to respond in a timely manner meant he was not entitled to have his decision reviewed by the Tribunal.

    Legislation

12. The relevant provisions of the Migration Act 1958 (Cth) (Act) are sections 500, 501, 501G, and certain provisions in the Migration Regulations 1994 (Cth).

    Consideration

13. Section 501(2) of the Act permits a delegate of the Minister for Immigration and Citizenship to cancel a visa. The grounds listed are if the delegate reasonably suspects that the person does not pass the character test and the person does not satisfy the Minister that they pass the character test.

14. Among other criteria, a person will not pass the character test if they have a substantial criminal record (section 501(6)(a)). Further a person will be taken to have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more (section 501(7)(c)). The applicant had been sentenced on four occasions to a term of imprisonment of 12 months or more.

15. Notwithstanding that the applicant had terms of imprisonment which meant he had a substantial criminal record the Minister has a discretion in relation to the cancellation of a visa on character grounds. The Minister has set out the considerations which he will take into account in exercising that discretion. Those considerations as currently in force are found in Ministerial Direction 55.

16. Section 500(6B) is critical to this interlocutory application since it contains the time limits within which a person whose visa has been cancelled on character grounds must seek review by the Tribunal. The provision states:

    If a decision under section 501 of this Act relates to a person in the migration zone, an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the date on which the person was notified of the decision in accordance with subsection 501G(1). 

    The ‘migration zone’ is defined to mean, in effect, within Australia (section 5 of the Act). The applicant is in Australia. Hence he is in the migration zone.

17. A notice must be ‘given in the prescribed manner’ (section 501G(3)). The prescribed manner is set out in the Migration Regulations 1994 (Cth) (Regulations). Regulation 2.55 provides for the giving of a document to cancel a visa under section 501G(3). However, the regulation does not apply to a person in immigration detention (regulation 2.55(2)(b)). The applicant was in custody in April 2013 when the document was served on him. The Tribunal has assumed that the applicant’s being in custody is because he is in immigration detention.

18. The Tribunal only has the applicant’s word that he has been in custody since January 2013. There is little information to explain why he is in custody. His last sentence of imprisonment related to a conviction received in September 2010 for which he was to serve 13 months in detention. Even without being released earlier on parole he would have been released from detention before January 2013. The cancellation decision also noted ‘[the applicant] has resided in the community for at least 12 months. There is no information to indicate any further offending in that time’. The implication from that comment is that this period is the most recent period since his release in 2011. In addition, the 2010 offence was the last listed in the decision, although there were other offences for which no sentences were listed. Further, departmental reasons for cancellation of the applicant’s visa were completed in November 2011. Accordingly, the Tribunal has assumed that his current incarceration is because he is in immigration detention.

19. If that assumption is correct, regulation 5.02 provides:

    For the purposes of the Act and these Regulations, a document to be served on a person in immigration detention may be served by giving it to the person himself or herself, or to another person authorised by him or her to receive documents on his or her behalf.

    Even if that assumption is not correct, the process for service of a document in other cases of cancellation of visas is substantially the same (regulation 2.55). The letter notifying the applicant that his visa had been cancelled is marked ‘Hand Delivered’. He signed an acknowledgement form on 24 April 2013 to say he had received the documents. In confirmation, the case officer indicated in his email that the applicant asked for the Tribunal’s telephone number to be added to his account prior to 26 April 2013. That would be consistent with the cancellation decision being received by him on 24 April 2013. The Tribunal so finds.

20. The applicant was also given reasons for the cancellation of his visa, and the documents included copies of documents on which the decision-maker relied; he was notified that he had a right of review by the Tribunal, that he could contact the Tribunal by telephone for no charge, and he was given the addresses of the registries of the Tribunal. He was advised that he had nine days after the date of notification in which to lodge that application for review, and that notification was deemed to have occurred on the day on which the documents were hand delivered to him. In other words the statutory requirements relating to the processes for notifications as set out in the Act and the Regulations were complied with. On that basis, there does not appear to be any failure to follow the notification processes.[1] Accordingly the Tribunal finds that the applicant was properly notified of the decision to cancel his visa.

    [1] Cf Chan Ta Srey v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1292; Wilson v Minister for Immigration and Citizenship [2012] FCA 1421.

21. The applicant’s English enabled him to communicate with the Tribunal by telephone. At times he was a little difficult to understand and the presence of an interpreter was useful at those times. Nonetheless, that does not indicate a lack of understanding. The evidence indicates that his understanding was sufficient for him to have read the instructions in the cancellation letter, to have known that he should telephone the Tribunal, and to seek to have that number added to his account. The form is completed in his handwriting by himself, and although he appears to have misunderstood at least the question about the date of decision, otherwise he responded appropriately to the questions. Accordingly the Tribunal does not consider his understanding or his language skills prevented him being aware of the obligation to seek review by the Tribunal within a strict time limit of nine days.

22. The history of this matter suggests that the applicant requested the Tribunal’s telephone number be added to his account so that he could phone the Tribunal on or about the day on which he was advised of the cancellation of his visa, that is, 24 April 2013. The case officer’s evidence was that the applicant’s application had reached the first level of approval by 26 April 2013. However, the number did not finally get added to his account until the 29 April 2013. The case officer’s evidence was that a delay of one to two days between the number being added to the account and a detainee being notified of that outcome is entirely plausible. The applicant did not indicate that this had occurred in his case. However, it would be consistent with the applicant not contacting the Tribunal until 1 May 2013. The Tribunal does not have records of the day on which it sent the form to the applicant. However, it was apparently posted on 1 May 2013, since it appears to have been received on the Friday.

23. At the hearing the applicant said he received a document on a Friday and posted it on the Monday. The 3 May 2013 was a Friday and the 6 May 2013 is a Monday and the day on which the Tribunal received the application which was faxed to it. So it is consistent with the applicant’s account that he received the application form on Friday 3 May 2013 and sent it back on the Monday 6 May 2013. That is also consistent with the Tribunal having received the request for the application form on 1 May 2013, having posted it to the applicant that day, and the letter having taken two days in the normal course of post to reach him. There is no information about what time of day he received the application form.

24. Since the applicant completed and faxed the form to the Tribunal, the Tribunal has assumed, since he had been notified of the nine day time limit, that he could have done so on 3 May 2013. He did not do so until the following Monday, so the application was out of time. Although the application was only three days late, the time limit is a strict one.  That is consistent with the purpose evident from the legislation,[2] indicated by its providing for a total period of 84 days for completion by the Tribunal of reviews under section 501,[3] that review by the Tribunal of such matters be expedited and that time limits be adhered to strictly. Accordingly, the Tribunal finds that the applicant’s application was out of time and the Tribunal has no jurisdiction to review the decision to cancel his Class XB Subclass 202 (Global Special Humanitarian) visa.

    [2] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

    [3] Act s 500(6L).

I certify that the preceding 24 (twenty -four) paragraphs are a true copy of the reasons for the decision herein of Professor RM Creyke, Senior Member.

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Associate

Dated 28 May 2013

Date of hearing	22 May 2013
applicant	Sef-represented
Advocate for the Respondent	Tigiilagi Eteuati
Solicitors for the Respondent	Clayton Utz