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

[2022] AATA 2060

QXZB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 2060 (29 June 2022)

Division:GENERAL DIVISION

File Number:          2022/4651

Re:QXZB  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr M Evans-Bonner

Date:29 June 2022

Place:Perth

Application 2022/4651 is dismissed under s 42A(4) of the Administrative AppealsTribunal Act 1975 (Cth).

..............[Sgd]..........................................................

Senior Member Dr M Evans-Bonner

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – Migration Act 1958 (Cth) – s 500(6B) –decision of delegate of the Minister to refuse the grant of a Temporary Protection (Class XD) visa – Applicant received s 501G documents including the Refusal Decision but lost some of the documentation and requested the documents again – application for review lodged after the nine day time limit – Tribunal has no discretion to extend the time for making the application – 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), 42A(4)
Migration Act 1958 (Cth) – ss 494B(2), 494C(2), 500(6B), 501(1), 501G(1), 501G(2), 501G(3)

Migration Regulations 1994 (Cth) – reg 2.16(3)

REASONS FOR DECISION

Senior Member Dr M Evans-Bonner

29 June 2022

OVERVIEW

1. The Applicant is a national of Iran. He is currently in immigration detention in Western Australia.

2. By an application to this Tribunal made on 5 June 2022, the Applicant sought review of a decision of a delegate of the Respondent dated 28 April 2022 to refuse to grant him a Temporary Protection (Class XD) visa (Visa) pursuant to s 501(1) of the Migration Act 1958 (Cth) (Migration Act). I will refer to this decision as the Refusal Decision.

3. I have had to dismiss the Applicant’s application because his application for review was lodged out of time, and there is no discretion for me to extend it.

   INTERLOCUTORY HEARING

4. I held an interlocutory hearing by videoconference on 23 June 2022 to hear submissions and evidence on the issue of whether I had jurisdiction to hear the substantive application.

5. The Applicant represented himself and the Respondent was represented by Ms E Tattersall of Sparke Helmore Lawyers.

6. The Applicant gave evidence about when he received the notification package containing the Refusal Decision. Based on that evidence, and on the contemporaneous documents, the Respondent submitted that the application should be dismissed for want of jurisdiction under s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act). I agree for the reasons set out below.

   WAS THE APPLICANT NOTIFIED IN ACCORDANCE WITH SECTION 501G OF THE MIGRATION ACT?

7. I have reviewed the notification package sent to the Applicant, which was included in the Tender Bundle filed by the Respondent. I admitted this document into evidence as Exhibit 1.

8. The notification package included an undated notification letter addressed to the Applicant with the method of delivery stated as “By Hand”. The letter enclosed:

   (a)the delegate’s Refusal Decision dated 28 April 2022;  

   (b)a statement of reasons for the decision also dated 28 April 2022; and

   (c)an index of relevant materials considered by the delegate and copies of those materials (attachments A through to Y).

9. Two copies of these documents were provided to the Applicant. This is confirmed in a covering email sent to the detention centre by the Department on 2 May 2022, a list of enclosures at the bottom of the covering letter, and an acknowledgment of receipt signed by the Applicant on 3 May 2022. These all refer to two copies being provided as part of the notification package.

10. The notification letter and the statement of reasons both state the Refusal Decision and specify that it was made under s 501(1) of the Migration Act. The statement of reasons also states the effect of the Refusal Decision in paragraphs [3] and [4]).

11. Further, the notification letter to the Applicant stated that the Applicant had the right to have the Refusal Decision reviewed by this Tribunal. It stated that the application had to be lodged with the Tribunal within nine days after the day on which the Applicant was notified of the Refusal Decision (and that he was taken to have received it when it was handed to him).

12. Also enclosed with the notification package was an information sheet about how to apply to this Tribunal for review and another information sheet explaining the relevant procedural provisions of the Migration Act (s 500(6A) through to s 500(6L)).

13. Consequently, I find that the Applicant was properly notified in accordance with s 501G(1)(c) to (f) and s 501G(2) of the Migration Act.

    WHEN WAS THE APPLICANT NOTIFIED?

14. The Applicant first received the notification package in immigration detention on 3 May 2022 when the documents were handed to him. He signed to acknowledge receipt on 3 May 2022 (E1/732). At the interlocutory hearing he identified the signature on the acknowledgment as his, and he agreed that he received the decision that day.

15. The Applicant’s evidence that he received the notification package on 3 May 2022 is further supported by contemporaneous email correspondence between officers in different sections at the Department of Home Affairs. One email dated 6 May 2022 forwarded a copy of the Applicant’s signed acknowledgment. An earlier email in the email trail between departmental officers confirmed that the “decision was handed down” to the Applicant on 3 May 2022 at 10.15am WST.

16. The Applicant’s evidence at the interlocutory hearing was that he did not read all the documentation when he received it, and subsequently lost the notification letter. He thought he may have left it in the library at the detention centre. He subsequently asked the Department for another copy of the notification package. In the interim, he was confused about how long he had to lodge an application for review of the Refusal Decision with the Tribunal. This was because he had received conflicting information from people at the detention centre that he had either nine days or 28 days to lodge an application with the Tribunal.

17. The Applicant then received the notification package again on 2 June 2022. At the interlocutory hearing I took the Applicant to the signed acknowledgment dated 2 June 2022 that he had lodged with his application (E1/739). He stated that the signature was that of another detainee who was helping him with his application who had signed the Applicant’s name. The Applicant’s evidence was that, even though the second notification package was signed for by another detainee, he received it again on 2 June 2022.

18. The Migration Act and the Migration Regulations 1994 (Cth) (the Regulations) set out when a person is taken to have received a document from the Minister.

    (a)Subsection 501G(3) of the Migration Act provides that notice under s 501G(1) must be given in the “prescribed manner”.

    (b)Regulation 2.16(3) of the Regulations provides that “the Minister must notify an applicant of a decision to refuse to grant a visa by one of the methods specified in section 494B of the [Migration] Act”. 

    (c)A note under this Regulation states that: “If the Minister gives a person a document by a method specified in section 494B of the Act, the person is taken to have received the document at the time specified in section 494C of the Act in respect of the method”.

    (d)Subsection 494B(2) of the Migration Act provides that the Minister can give a document to a person by “handing the document to the recipient”. If the Minister gives a document to a person in this manner, s 494C(2) provides that “the person is taken to have received the document when it is handed to the person”.

19. The effect of these provisions is that the Applicant is taken to have received the notification package when it was first handed to him on 3 May 2022. The fact that he lost the notification letter and had the notification package handed to him again on 2 June 2022, does not alter the fact that he was properly notified on 3 May 2022.

    DID THE APPLICANT LODGE AN APPLICATION FOR REVIEW WITHIN THE NINE DAY STATUTORY TIME LIMIT?

20. According to s 500(6B) of the Migration Act:

    If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, 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 day on which the person was notified of the decision in accordance with subsection 501G(1). Accordingly, paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.

21. In summary, s 500(6B) of the Migration Act provides that if a person is in the migration zone, an application to the Tribunal for the review of a decision under s 501 of the Migration Act must be lodged within nine days after the day on which the person was notified of the decision in accordance with subsection 501G(1) of the Migration Act.

22. The nine-day time limit is a rigid one and cannot be extended. This is because s 500(6B) of the Migration Act excludes the provisions of the AAT Act (including s 29(7)) under which the Tribunal ordinarily has discretion to extend the time for making applications.

23. As I found above, the Applicant was properly notified in accordance with s 501G on 3 May 2022. He therefore had until 12 May 2022 to lodge his application to review the Refusal Decision in this Tribunal.

24. However, the Applicant did not lodge his application for review of the Refusal Decision in this Tribunal until 5 June 2022. His application stated that he received the Refusal Decision on 2 June 2022. However, as I have explained above, at the interlocutory hearing the Applicant agreed that this was the second time he received the Refusal Decision after losing the notification letter he received on 3 May 2022.

25. The Applicant acknowledged that the delay was his fault, that he made a mistake and that he did not make an application within nine days.

26. I find that the Applicant lodged his application for review in this Tribunal after the nine-day time limit prescribed by s 500(6B) of the Migration Act.

    CONCLUSION

27. Subsection 42A(4) of the AAT Act provides that: “The 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”.

28. As the Applicant did not lodge an application for review within the nine-day period prescribed by s 500(6B) of the Migration Act, and as I have no discretion to grant an extension of time, I am satisfied that I cannot review the Refusal Decision. In other words, I do not have jurisdiction to review the Refusal Decision.

    DECISION

29. Application 2022/4651 is dismissed under s 42A(4) of the AAT Act.

I certify that the preceding 29 (twenty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

...............[Sgd]......................................................

Associate

Dated: 29 June 2022

Date of interlocutory hearing:	23 June 2022
Representative for the Applicant:	Self-represented
Representative for the Respondent:	Ms E Tattersall, Sparke Helmore Lawyers