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

RXQM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 377 (28 February 2020)
Division:GENERAL DIVISION
File Number:2020/0531
Re:RXQM
APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT

DECISION
Tribunal:Member S Burford
Date:28 February 2020
Date of written reasons: 3 March 2020
Place:Perth

The Tribunal dismisses the application for review filed on 24 January 2020 pursuant to section 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).
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Member Burford
CATCHWORDS
PRACTICE AND PROCEDURE – refusal of Applicant’s visa under s 501(1) of the Migration Act 1958 (Cth) – whether application for review lodged out of time – no discretion to extend time for making application – application dismissed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – ss 36(2) and (3)
Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)
Migration Act 1958 (Cth) – ss 500(6B), 501, 501(1), 501G, 501G(1)(c)-(f), 501G(2), 501G(3)

CASES
BAL19 v Minister for Home Affairs [2019] FCA 2189
Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338
Nansen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 193
Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213
Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552

SECONDARY MATERIAL
Migration Regulations 1994 (Cth) – reg 2.55(5)
REASONS FOR DECISION
Member S Burford
3 March 2020
THE APPLICATION

This is an application for review of a decision made by the Delegate of the Respondent dated 6 December 2019 to refuse the Applicant a Temporary Protection (Class XD) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (the Migration Act) (the Delegate’s decision).
At the initial directions hearing on the matter on 6 February 2020 the Respondent requested an interlocutory hearing on jurisdiction. An interlocutory hearing on jurisdiction was held in Perth on 17 February 2020. That hearing was adjourned to enable the Respondent to obtain further evidence regarding the notification of the decision to the Applicant and a further interlocutory hearing was held on 28 February 2020. The Applicant attended the interlocutory hearings by telephone and represented himself. The Respondent was represented by Ms Tattersall, Sparke Helmore Lawyers, who attended the hearings by telephone. The hearings were conducted with the assistance of an accredited interpreter in the English and Farsi languages.
Oral submissions were made by both parties. The Respondent also filed written submissions. The Applicant answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent and to confirm his understanding of the Respondent’s submissions.
BACKGROUND
The Applicant is a citizen of Afghanistan. He is currently in immigration detention at Yongah Hill Immigration Detention Centre in Western Australia.
On 6 December 2019, a Delegate of the Respondent made a decision to refuse the Applicant a Temporary Protection (Class XD) visa pursuant to s 501(1) of the Migration Act.
According to the Respondent’s submissions, the Applicant was notified of the Delegate’s decision by letter dated 12 December 2019. That letter and its attachments were emailed to Yongah Hill Immigration Detention Centre where the Applicant is currently detained. The letter and attachments were then delivered to the Applicant, by hand, in Yongah Hill Immigration Detention Centre on 16 December 2019. The Applicant disputes the Respondent’s contention regarding the documents he received on that date. This issue is considered further below.
On 24 January 2020, the Applicant applied to the Administrative Appeals Tribunal
(the Tribunal) for review of the Delegate’s decision.
THE MATERIAL
The following material was before the Tribunal:
·the Applicant’s application for review emailed to the Tribunal on 24 January 2020 (the application for review) (Exhibit A1);
·
documents filed in support of the application for review received by the Tribunal on 3 February 2020 – including a copy of the letter notifying the Applicant of the Delegate’s decision dated 12 December 2019 and statement of reasons dated

6 December 2019 and attachments (Exhibit A2);
·the Respondent’s written submissions on jurisdiction received by the Tribunal on 10 February 2020 (Exhibit R1);
·a copy of material handed to the Applicant as part of the notification of the Delegate’s decision including the letter dated 12 December 2019 notifying of the Delegate’s decision, statement of reasons dated 6 December 2019, evidence or other material considered in the case, information sheet about how to apply for merits review by the AAT and information about certain provisions of the Migration Act (Exhibit R2);
·an email from the Department of Home Affairs (Visa Applications Character Consideration Unit) (the Department VACCU) dated 12 December 2019 to Yongah Hill Immigration Detention Centre (YHIDC Status Resolutions WA Status Resolution) requesting hand delivery to the Applicant of the notification of refusal and the other attachments regarding refusal of the Applicant’s visa application and attaching those documents (Exhibit R3);
·an email from Yongah Hill Immigration Detention Centre (YHIDC Status Resolutions WA Status Resolution) to the Department VACCU dated 16 December 2019 confirming hand delivery to the Applicant of the notification of refusal of the visa and the other attachments regarding refusal of the visa of the Applicant’s visa (Exhibit R4); and
·Statutory Declaration of Tarryn Maree Harmer, Status Resolutions Officer (SRO), Department of Home Affairs dated 21 February 2020 (Exhibit R5).
CONSIDERATION
Section 500(6B) of the Migration Act provides that if a decision under s 501 relates to a person in the migration zone, an application to the Tribunal for a review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, in accordance with the s 501G of the Migration Act. The Tribunal has no power to extend time with respect to such applications.[1]
[1] Singh v Minister for Immigration and Citizenship (2011) 190 FCR 552; Nansen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 193.
In addition to providing that an application to the Tribunal for a review of the decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, section 500(6B) of the Migration Act also has the effect that the time limits for applying for review and provisions relating to the extension of time to seek review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) are inapplicable to an application for review of a decision made under s 501 of the Migration Act.
Section 501G of the Migration Act provides for the notification requirements regarding a decision under s 501 of the Migration Act. These include s 501G(1)(f) of the Migration Act which details the requirements of the content of notification.
Section 501G(3) of the Migration Act provides that the notice must be given in the prescribed manner.
Regulation 2.55(5) of the Migration Regulations 1994 (Cth) (the Regulations) provides that if the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person. The Delegate’s decision was hand delivered to the Applicant on 16 December 2019, as evidenced by the statutory declaration of the SRO with the Department VACCU who was responsible for arranging the notification package to be delivered to the Applicant and who confirmed with the Applicant via a teleconference on 16 December 2019 that he had received the information.
The Applicant could not recall the exact date he was handed the decision and thought it might have been 12 or 14 December 2019. He said when he was given the decision the case officer told him he had nine days to apply for review but he did not know what to do.
In any event, he did not contest that he was handed the decision proximate to 16 December 2019 rather he was confused about the exact date. The Tribunal finds, based on the evidence before it that the decision was provided to him by hand on 16 December 2019.
Therefore, the Applicant is deemed to have received the Delegate’s decision on

16 December 2019.
Notification of the Delegate’s decision
As noted above, the Applicant did not contest the Minister’s timeline for notification of the decision. However, during questioning from the Tribunal at the interlocutory hearing on

17 February 2019 the Applicant denied that he had been given two copies of the “attachment – Evidence and material”.
On the evidence before the Tribunal, the Department VACCU emailed Yongah Hill Immigration Detention Centre on 12 December 2019. Relevantly the text of the email was as follows:
Can you please print and hand deliver refusal notification documents to … [the Applicant] at your earliest convenience.
It then listed five document PDF’s as attachments and requested the following documents be hand delivered to the Applicant:
·Notification letter;
·Copy of decision record;
·Two copies of attachments – Evidence and material;
·AAT information; and
·Effect of subsection 500(6A) to (6L) document.
These were the notification documents required to be provided pursuant to s 501G of the Migration Act.
The Statutory Declaration from the SRO confirms that she asked staff at Yongah Hill Immigration Detention Centre to print the documents and deliver them to the Applicant at a meeting she had scheduled with the Applicant on 16 December 2019. The email through which the SRO organised the documents to be handed to the Applicant specifically requests two copies of the “Attachments - Evidence and Material” be provided.
The SRO stated that she had a teleconference with the Applicant on 16 December 2019 where she confirmed with him that he had received a hard copy of the decision and notification and duplicates of the attachments (evidence and material). This was supported by her contemporaneous case notes which were annexed to her Statutory Declaration.
On 16 December 2019, the SRO sent an email to VACCU stating:
Confirming … [the Applicant] was notified of his visa refusal today and received the documents listed below.
The “list below” referred to the documents set out earlier in this decision.
The Applicant said the case manager said to contact the AAT before filling out the Application form and gave him a number that was wrong. This is not consistent with the SRO notes with respect to the events described. The SRO made notes on several occasions that the Applicant was encouraged to consider whether he would apply for review and to contact the AAT to discuss his options (in later discussions where the SRO pointed out to the Applicant that his Application was late).
At the interlocutory hearing on 28 February 2020 the Tribunal explained the evidence from the SRO. The Applicant did not make any submissions or provide any evidence challenging the SRO’s account of the notification process.
The Minister submitted that the notification documents satisfied the requirements of
ss 501G(1)(c)-(f) and 501G(2) of the Migration Act. The Respondent submitted that the notice met all the requirements of s 501G of the Migration Act in that it:
·set out the decision;
·specified the decision was made under s 501(1) of the Migration Act and stated the effect of the decision;
·attached a detailed statement of reasons for the decision;
·under the heading “Review Rights”, detailed the Applicant’s rights of review, including stating that the application for review must be lodged within nine days after the Applicant is taken to be notified of the decision, and noting that as the letter had been given to him by hand, he was taken to have received it when it was handed to him. Further, the notice also included an information sheet about “How to Apply for Merits Review by the Administrative Appeals Tribunal”; and
·provided the Applicant with two copies of the notice and attachments.
The Tribunal finds the SRO’s evidence regarding the notification is to be preferred to that of the Applicant to the extent there was a conflict. This is because the SRO kept contemporaneous notes which supported her account of the delivery of the documents and did so prior to the issue of jurisdiction arising. By contrast the Applicant’s evidence regarding the timeline and details of the documents he received was confused. This is understandable given the Applicant’s circumstance including his lack of familiarity with the process and the fact the content of the documents would not have had particular significance to him at the time other than with respect to the implications of the decision and his options going forward. The Applicant’s evidence also suggested that his recollection of the details of the documents was unclear. Given the understandable lack of clarity in dates and details in the Applicant’s evidence and submissions, the Tribunal regards the record of events maintained at the time by the SRO as a more reliable account.
It is not clear why no signed delivery receipt was obtained on this application, though it appears none was sought. In any event, and for the reasons outlined above, the Tribunal finds on the evidence of the SRO that the document, the attachments and required number of copies were provided to the Applicant on 16 December 2019 such that the Applicant was properly notified of the decision on that date.
Further, having reviewed the copies of the documents submitted, the Tribunal is satisfied that the requirements of s 501G were met and accordingly that the Applicant was properly notified of the decision on 16 December 2019.
As the Applicant was properly notified on 16 December 2019, the deadline prescribed by
[2] Acts Interpretation Act 1901 (Cth) ss 36(2) and (3)
s 500(6B) of the Migration Act would have expired on 25 December 2019. However that was a public holiday. The next day after the 25 December 2019 that was not a public holiday was 27 December 2019. Accordingly, the application was required to be filed on or before 27 December 2019.[2]
CONCLUSION
The Tribunal is mindful of the impact the timeframe for lodging an application for review provisions have had on the Applicant.
The Tribunal notes that the Applicant was refused a protection visa under s 501(1) of the Migration Act and that the Delegate’s decision may be affected by the decision of the Federal Court in BAL19 v Minister for Home Affairs [2019] FCA 2189. However, the fact that the purported exercise of power in relation to which review is sought may not have been valid does not affect the making of an application for review or the requirements for making such an application, including the statutory timeframes.[3]
[3] Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd (1979) 41 FLR 338, 346 per Bowen CJ; see also Secretary, Department of Social Security v Alvaro (1994) 50 FCR 213, 219.
In this regard the Tribunal notes that the Tribunal advised the Applicant on several occasions during the hearings that if the Tribunal found it lacked jurisdiction to hear his application he should seek legal advice as to any other review options available to him.
The Tribunal has found that the Notice to the Applicant of the Delegate’s decision met the requirements of s 501G of the Migration Act.
The Tribunal has further found that the Applicant was correctly notified of the visa refusal decision by hand under the relevant provisions of the Migration Act and Regulations.
The Tribunal has also found that the Applicant was notified of the decision on
16 December 2019.
The Tribunal has found that the application for review of the Delegate’s decision was required to be lodged on or before 27 December 2019.
The Tribunal finds the application for review was lodged on 24 January 2020.
Accordingly, the Tribunal finds that the application for review which was lodged on
24 January 2020 was lodged out of time and the Tribunal is satisfied on the evidence that the decision is not reviewable by the Tribunal.
DECISION
The Tribunal does not have jurisdiction to review the Delegate’s decision and the Tribunal dismisses the application for review filed on 24 January 2020 pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 40 (forty) paragraphs are a true copy of the reasons for the decision herein of Member S Burford

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Associate
Dated: 3 March 2020

Date of hearing: 28 February 2020

Applicant: Self-represented

Counsel for the Respondent: Elle Tattersall

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 377

28 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Natural Justice

Statutory Construction

Appeal

Date of hearing:	28 February 2020
Applicant:	Self-represented
Counsel for the Respondent:	Elle Tattersall
Solicitors for the Respondent:	Sparke Helmore Lawyers