Rauhina and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) - [2024] AATA 34

Rauhina and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 34 (19 January 2024)
Division:GENERAL DIVISION
File Number: 2023/8478
Re:William Luke Rauhina
APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:19 January 2024
Place:Brisbane

The Application for Extension of Time dated 9 November 2023 is, p
ursuant to

section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), refused.
........................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
PRACTICE AND PROCEDURE – Migration – Application for extension of time - whether the length of delay was justified - whether there was a reasonable explanation for the delay - whether the substantive application for review has merits - whether granting of extension of time would prejudice the Respondent or the general public - whether there are alternative avenues of relief for the Applicant should the extension of time not be granted – Non-revocation of mandatory cancellation of visa –- Applicant not in the migration zone- extension of time request refused
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341
BVG17 v BVH17 (2019) 268 FCR 448
Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
South Regional Health Authority v Taylor (1996) 139 ALR 1
Secondary Materials
Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
19 January 2024
INTRODUCTION

William Luke Rauhina (‘Applicant’) seeks an extension of time to apply for a review of a decision[1] (‘the relevant decision’) made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘Respondent’) on 22 December 2021 involving a refusal to revoke an earlier-made decision[2] involving the mandatory cancellation of the visa then held by the Applicant.
[1] Pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’).
[2] Pursuant to s 501(3A) of the Act.
RELEVANT PERIOD TO FILE APPLICATION FOR REVIEW
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides that the prescribed time for making applications to this Tribunal is the period commencing on the day on which the reviewable decision is made and ending on the twenty-eighth (28) day thereafter. This means that the Applicant had 28 days on and from his receipt of the delegate’s abovementioned decision refusing revocation of the earlier-made mandatory cancellation decision.
CHRONOLOGY
The Respondent has helpfully prepared a chronology which appears as attachment A to Exhibit R2. In abbreviated form, that chronology may be stated thus:
·on 20 February 2000: the Applicant arrived in Australia;
·on 15 February 2018: the Applicant was notified of the mandatory cancellation of his then-held visa;[3]
[3] R1, pp 135-139.
·on 7 March 2018: via his then legal representative, the Applicant requested revocation of the mandatory cancellation decision;
·on 26 July 2018: the Applicant departed Australia;[4]
[4] R1, p 133.
·on 3 November 2021: the Respondent’s Department forwarded a Natural Justice letter[5] to the Applicant. This letter was forwarded by email to the specific email address comprising ‘[email protected]’;[6]
[5] R1, p 166-168.
[6] R1, p 165.
·on 15 November 2021: the Applicant responded to the email containing the Natural Justice Letter. His responsive email was sent from ‘[email protected]’[7] and contains the words ‘Thank you very much, i will completed [sic] these forms and send them back. kind regards..’;[8]
[7] R1, p 169.
[8] Ibid.
·on 1, 17 and 19 December 2021, the Applicant further communicated with the Respondent’s Department by email from ‘[email protected]’ email address:
o1 December 2021: on this date the Applicant communicated with the Respondent’s Department on multiple occasions by email;[9]
[9] See R1, pp 171-177.
o17 December 2021: on this date the Applicant communicated at least once with the Respondent’s Department by email;[10]
[10] R1, p 178.
o19 December 2021: on this date the Applicant communicated with the Respondent’s Department at least once by email.[11]
[11] R1, p 120.
·on 23 December 2021: the Department notified the Applicant of the relevant decision in which the Respondent’s delegate refused to revoke the mandatory cancellation decision. The covering letter (dated 23 December 2021) enclosing the relevant decision (dated 22 December 2021) was notified to the Applicant by email to the email address comprising ‘[email protected]’;[12]
·
on 19 March 2023: the Applicant communicated with the Respondent’s Department from the email address comprising ‘[email protected]’. He

re-introduced himself and said ‘….I am looking to apply for my visa again. Is this still possible?’[13]
·on 20 March 2023: the Respondent’s Department responded to the Applicant’s immediately preceding email;[14]
·on 14 November 2023:[15] the Applicant lodged the instant ‘Application for Extension of Time’ which is dated ‘09/11/2023;’[16]
·on 7 December 2023: this Tribunal part-heard the instant application for extension of time; and
·on 12 January 2024: this Tribunal completed the hearing of the instant application for extension of time.
[12] R1, pp 8-26; See also R1, p 179-186.
[13] R1, p 187.
[14] R1, p 189.
[15] A1, p 1.
[16] A1, p 7.
CAN IT NOW BE FOUND THAT THE APPLICANT DID RECEIVE THE RELEVANT DECISION?
The Respondent did, by covering letter dated 23 December 2021, forward the relevant decision to the Applicant. The covering letter is marked ‘Notification by Email’.[17] The contest between the parties giving rise to the instant application derives from the Applicant’s contention that he did not receive - at any time - either the covering letter or the relevant decision it attached.
[17] R1, pp 8-26.
At the interlocutory hearing of this matter, I asked the Respondent to prepare an inventory of the number of emails sent by the Respondent’s Department to the Applicant together with the number of emails sent by the Applicant to the Respondent’s Department for the period November-December 2021. I also asked the Respondent to indicate whether there had been any rejection or ‘bounce back’ or ‘failure to send’ (or the equivalent) notifications for emails sent to the Applicant’s nominated email address comprising ‘[email protected]’ during this period.
Helpfully, the Respondent provided this inventory which now relevantly appears at Exhibit R3. That inventory is stated thus:
‘The Respondent confirms that the National Character Consideration Centre (NCCC), within the Department of Home Affairs:
1. sent a total of 5 email to the Applicant from the 'NCCC Revocations' email address
([email protected]) within the relevant period on:
a. 3 November 2021 at 3:12pm (Respondent's Bundle of Materials [Exhibit R1, p 165]; and
b. 23 December 2021 at 10:14am, 10:15am, 10:16am and 10:17am [Exhibit R1, pp 179 – 186];
2. received a total of 6 emails from the Applicant to the NCCC Revocations email address within
the relevant period on:
a. 15 November 2021 [Exhibit R1, p 169]
b. 1 December 2021, 10:57am [Exhibit R1, p 171]. The Respondent notes that it also received
a duplicate of this email on 1 December 2021 at 6:35am;
c. 1 December 2021, 4:19pm [Exhibit R1, p 172);
d. 1 December 2021, 5:05pm [Exhibit R1, p 173];
e. 17 December 2021, 12:26pm [Exhibit R1, p 178];
f. 19 December 2021, 8:28 pm [Exhibit R1, p 120]; and
3. did not receive any rejection, bounce back or failure to send notifications in relation to the four emails containing the notification package sent on 23 December 2021 to the Applicant contained at [Exhibit R1, pp 179-186].’[18]
[18] R3, p 2. Note: the pinpoint page references to each document contained in this Exhibit R3 refer to specific pages at which of each of these documents appear in the Respondent’s bundle of material comprising Exhibit R1.
I am satisfied that the Applicant received both the abovementioned covering letter from the Respondent’s Department dated 23 November 2021 and the enclosed relevant decision dated 22 December 2021. These documents were, as a matter of demonstrable fact, forwarded by the Respondent’s Department to the Applicant’s nominated email address pursuant to the requirements appearing in Regulation 2.55 of the Migration Regulations1994 (Cth) (‘the Regulations’).
Given that the Applicant was not in the migration zone at the time the relevant decision had to be notified to him, the Respondent did, in accordance with regulation 2.55 of the Regulations, transmit the covering letter and the material it attached (including the relevant decision) to the last email address known to the Respondent.[19]
[19] Pursuant to Regulations 2.55(3)(d)(ii) and 2.55(4)(b) of the Regulations.
There seems little to cavil with the proposition (and finding) that the material including the relevant decision was notified to the Applicant by email on 23 December 2021 by the Respondent’s Department to the last known email address of the Applicant which comprised ‘[email protected]’. Likewise, the Applicant cannot cavil with a finding that it was open to the Respondent’s Department to assume that ‘[email protected]’ was in fact his last known email address for the receipt of documents and the Respondent’s Department has otherwise met the requirements of regulation 2.55 of the Regulations.
It is not plausible for the Applicant to suggest he did not receive the covering letter of

23 December 2021 and its attachments (including the relevant decision) at ‘[email protected]’ given that he had, on numerous occasions both prior to and after December 2021 communicated with the Respondent’s Department from exactly that email address. On the Applicant’s case, he seems to contend that he received every email from the Respondent’s Department sent to ‘[email protected]’ except the communication that matters for present purposes which comprises the communication dated 23 December 2021. Such a position is both self-serving and implausible.
This implausibility can be seen from the unlikely sequencing pattern appearing in Exhibit A2 comprising a the series of screenshots from the Applicant’s computer. It appears as though he has asked his email inbox to search for emails bearing the characters ‘501Revocations@homeaffairs…’. That search does turn up some emails from the Respondent’s Department. However, and critically for present purposes, it is necessary to home in on the period December 2021 and January 2022. Strangely, the search turns up an email from the Respondent’s Department dated 20 December 2021 but then the sequence goes strangely silent until 19 March 2023 at which time it will be recalled the Applicant communicated with the Respondent’s Department expressing an interest to ‘…apply for my visa again..’
It is difficult to accept this email sequence history as reliable and plausible. This is because prior to the date 20 December 2021, the history demonstrates a clear frequency of email traffic . Yet the sequence falls silent for 15 months from 20 December 2021 to 19 March 2023.
To avoid confusion, the reference to the email address ‘[email protected]’ in the abovementioned email sequence history is a reference to the Applicant’s mother,

Ms Barney Rauhina, who on 17 December 2021 indicated she was assisting the Applicant with the provision of responsive material to the Respondent’s Department. Importantly, at no time prior to the making of the relevant decision on 22 December 2021 did the Applicant or his mother provide any indication that her email address should be assumed by the Respondent’s Department to comprise the Applicant’s email address for his commnications with the Respondent’s Department . In addition, the material confirms that on 19 December 2021 (just three days before the relevant decision was made) the Applicant emailed the Respondent’s Department from his own ‘[email protected]’ email address which post-dates his mother’s communication with the Respondent’s Department from her email address.
CONSIDERATION OF PRINCIPLES RELATING TO EXTENSION OF TIME APPLICATIONS
If an application is filed out of time, a prospective applicant must apply for an extension of time. The Applicant’s application for an extension of time lodged on 14 November 2023 can be found to be a valid application per se. Whether this application secures an extension of time is a different matter.
The AAT Act facilitates an extension of time if the Tribunal is satisfied ‘that it is reasonable in all the circumstances to do so.”[20] The principles informing my assessment in relation to a requested extension of time were discussed by Wilcox J in Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 (‘Hunter Valley Developments’) and the Full Court of the Federal Court of Australia in AZAEY v Minister for Immigration and Border Protection (2015) 238 FCR 341 and BVG17 v BVH17 (2019) 268 FCR 448. Those principles comprise:
(a)the length of the delay;
(b)the explanation for the delay;
(c)the merits of the substantive application for review
(d)any prejudice to the Respondent or the general public arising from an extension of time; and
(e)any alternative avenues of relief for the Applicant should the extension of time not be granted.
[20] AAT Act, s29(7).
I will now consider each of these principles in turn.
Extent of the delay
The Applicant seeks an extension for a period of almost two years comprising the period of 23 December 2021 until 14 November 2023. This period comprises a very significant passage of time when one has particular regard to the 28 day time period stipulated in
s 29(2) of the AAT Act within which the Applicant should have filed his application for review of the relevant decision.
It can also be safely found that the Applicant has rested on his rights to seek review of the relevant decision. Given my findings in relation to notification of the relevant decision via email sent by the Respondent’s Department on 23 December 2021, I am satisfied the Applicant would have been aware of his right to seek review of the relevant decision yet he did nothing to indicate any intention to challenge the relevant decision until his communication to the Respondent’s Department in March 2023.
This silence spanning the period December 2021 to March 2023 cannot be explained by (1) any evidence demonstrating incapacity of the Applicant to lodge an application for review; (2) any claimed absence of support in such an endeavour given his past means of support in the form of a migration lawyer and his mother; and (3) any suggestion that during the period immediately following December 2021 he did not know how or where to find the Respondent’s Department given the plethora of email communications from both his own email address and that of his mother during 2023.
The extent of the delay must be found to be significant and, as such, militates against granting an extension of time.
The explanation for the delay
I have made findings about the self-serving and otherwise implausible explanation now proffered by the Applicant for the almost two year delay in filing his application. I have found (1) that the Respondent’s Department was entitled to assume that ‘[email protected]’ was the Applicant’s last known email address for the purposes of receiving documents; (2) that the Respondent’s Department met the requirements of regulation 2.55 by transmitting the covering letter and attachments (including the relevant decision) by email to ‘[email protected]’ on 23 December 2021; and (3) that the purported ‘email sequence history’ is ultimately unreliable and self-servingly devoid of any incoming emails whatsoever for the period 21 December 2021 to 18 March 2023. I find that the Applicant’s explanation for the delay is unsatisfactory and ultimately unreliable.
The merits of the substantive application
The nature and extent of the material now before the Tribunal does not facilitate a fulsome assessment of the merits referrable to an ensuing substantive application for restoration of the Applicant’s Australian visa status in the event the requested extension of time were granted. This is not the fault of either party given that (1) the Respondent has not had an opportunity (and has not has otherwise been required) to prepare the statutorily mandated bundle of documents pursuant to s 501G of the Act; and (2) the Applicant has not had an opportunity to put together any statement of facts, issues and contentions addressing the requirements of the prevailing Ministerial Direction.[21] My finding can only be that the merits of any substantive application cannot be safely be assessed on the present state of the material.
[21] Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
Prejudice to the Respondent or the general public
During the interlocutory hearings before me, the Respondent’s representative submitted that the Respondent and the general public would suffer prejudice in the event this Tribunal granted the requested extension of time. I think this submission is fairly made because the Respondent’s Department is a significantly sized taxpayer-funded entity with a significantly - sized cohort of current and/or pending visa matters. Its resources are no doubt stretched in terms of managing and finalising those matters. It surely assists with the administrative effort behind management and allocation of those resources for such a Department to know, with a certain level of finality, whether or not a matter is proceeding within the statutory timeframe governing commencement of such a proceeding.
I respectfully concur with His Honour Justice McHugh who in Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 at 9 said:
‘…. people should be able to arrange their affairs and utilize their resources on the basis that claims can no longer be made against them. Insurers, public institutions and businesses, particularly limited liability companies, have a significant interest in knowing that they have no liabilities beyond a definite period…. The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.’
I am of the view that the prejudice to be suffered by the Respondent militates against granting the extension of time sought by the Applicant.
Any alternative avenues for relief if the extension of time is refused
As best as I understand the Applicant’s position, there are no alternative avenues pursuant to which his visa status to re-enter Australia could be restored to him. It is more likely than not that refusal of the requested extension will be fatal to the Applicant’s prospects of securing an Australian visa. This factor does militate in favour of granting the requested extension of time.
Summary of findings about the Hunter Valley Developments principles
The Applicant’s delay in filing any application for review is both significant and must otherwise be found to be the result of him resting on his rights. His explanation for the delay is both self-serving and implausible. The merits of any substantive application following a grant of the requested extension cannot be safely assessed on the current state of the material before the Tribunal. I have found the Respondent’s Department, and the tax paying public who fund it, would be prejudiced by granting the requested extension. They are entitled to a certain level of finality as to whether or not a matter is proceeding within statutorily mandated timeframes. With the possible exception of the merits of any substantive application, the Hunter Valley Development principles I have summarised in this paragraph militate against granting the requested extension of time.

The exception, and sole factor militating in favour of granting the requested extension, lies in the likelihood of there being no alternative avenues available to the Applicant to secure a visa in order to return to Australia and that refusal of this requested extension would be fatal to his prospects of doing so.
DECISION ABOUT APPLICATION FOR EXTENSION OF TIME
After weighing the abovementioned factors in Hunter Valley Developments, I am not satisfied that it is reasonable to extend the time for lodgement of a review application and therefore the instant Application for Extension of Time should be refused. I so order.
ORDER
The Application for Extension of Time dated 9 November 2023[22] is, p
[22] A1, p 7.
ursuant to

section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth), refused.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

...............[SGD]...............
Associate
Dated: 19 January 2024

Dates of interlocutory hearing: 7 December 2023 and 12 January 2024

Applicant: Self-represented litigant

Solicitor for the Respondent: Ms Gabrielle Ho (Lawyer)

Clayton Utz Lawyers
ANNEXURE A
Applicant’s exhibits
A1 – Email sent 14 November 2023 attaching Application for Extension of Time (7 pages);
A2 – Series of screenshots of email inbox (15 pages);
A3 – Email dated 1 December 2021 (1 page).
Respondent’s exhibits
R1 – Respondent’s bundle of materials (194 pages);
R2 – Respondent’s Notice of Opposing Application for Extension of Time (8 pages);
R3 – Email from Respondent’s representative sent on 18 December 2023 (2 pages).

Dates of interlocutory hearing:	7 December 2023 and 12 January 2024
Applicant:	Self-represented litigant
Solicitor for the Respondent:	Ms Gabrielle Ho (Lawyer)
Clayton Utz Lawyers