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

This matter concerned an application for review of a mandatory visa cancellation decision made under section 501(3A) of the Migration Act 1958 (Cth) due to the applicant failing the character test. The applicant sought to make representations to the Minister for revocation of the cancellation. The central dispute revolved around whether the applicant had made these representations within the prescribed 28-day timeframe, which was a jurisdictional fact for the Minister's power to consider revocation. The Administrative Appeals Tribunal (AAT) was required to determine if the applicant had made representations in accordance with the invitation to do so.

The AAT considered the timeframe for making representations, which was stipulated as 28 days after the applicant was taken to have received the notification of the mandatory cancellation decision. The first notification letter, dated 13 August 2019, was sent by registered post to the applicant's last known address, Dawn de Loas Correctional Centre. Despite the letter being returned to the Department marked 'Return to Sender' with the notation 'Left Address/Unknown', the Tribunal found, based on documentary evidence including the stamped envelope, that the letter was dispatched on 14 August 2019. Applying sub-regulation 2.55(7) of the Migration Regulations 1994, the applicant was taken to have received the notification seven working days after its date, which was 22 August 2019.

The Tribunal reasoned that, in accordance with established case law, the applicant is deemed to have received the notification on 22 August 2019, irrespective of the letter being returned undelivered. This deeming provision operates without qualification. Consequently, the 28-day period for making representations commenced on 22 August 2019. As the applicant's representations were dated 4 October 2019, they were made outside the prescribed timeframe. Therefore, the applicant had not made representations in accordance with the invitation as required by section 501CA(4)(a) of the Act.

Having determined that the applicant did not make representations within the required timeframe, the Tribunal found it unnecessary to consider the other issues, namely whether the applicant passed the character test or if there was another reason to revoke the mandatory visa cancellation decision. The Reviewable Decision dated 30 June 2020 was affirmed.