Scott and Minister for Immigration and Citizenship
[2012] AATA 400
•9 March 2012
[2012] AATA 400
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0102
Re
Thomas Scott
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
ORDER
Tribunal Deputy President S D Hotop
Date 9 March 2012 Date of written reasons 28 June 2012 Place
Perth
Pursuant to section 500(6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction in respect of this application for review.
....................[sgd]....................................................
S D Hotop, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE - jurisdiction - applicant's visa cancelled - applicant taken to have received notice of cancellation decision on 29 December 2011 - applicant lodged application for review with Tribunal on 10 January 2012 - statutory provision that application for review must be lodged with Tribunal within 9 days after proper notification of decision - Tribunal's power to extend time for making application for review excluded by statutory provision - applicant properly notified of decision on 29 December 2011 - applicant's application for review lodged with Tribunal one day after expiration of prescribed period - Tribunal has no jurisdiction
LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36(2)
Administrative Appeals Tribunal Act 1975 (Cth), s 29
Migration Act 1958 (Cth), s 500(6B) and s 501G(1)Migration Regulations 1994 (Cth), reg 2.55
CASES
Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494
REASONS FOR ORDER
Deputy President S D Hotop
28 June 2012
Introduction
On 9 March 2012 I made an order in this matter in the following terms:
“ Pursuant to section 500(6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction in respect of this application for review.”
On that occasion I stated orally my reasons for making that order.
On 22 June 2012 the Tribunal received a written request from solicitors representing Thomas Scott (“the applicant”) for a statement of the reasons for the abovementioned order.
A statement of my reasons for making that order follows.
Relevant Factual Background
I find the following relevant background facts which appear from documents lodged with the Tribunal by the parties.
On 15 December 2011 a delegate of the Minister for Immigration and Citizenship (“the respondent”) cancelled the applicant’s Class BF Transitional (permanent) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
By letter dated 16 December 2011, addressed to the applicant at Acacia Prison (where he was then incarcerated), an officer of the Department of Immigration and Citizenship notified the applicant of the decision to cancel the visa. The copy of that letter lodged with the Tribunal bears a registered post number 565836140011.
On 10 January 2012 the Tribunal received a letter dated 5 January 2012 from the applicant (who gave his address as Acacia Prison) which states as follows:
“ Appeal of Decision to Cancel Visa
I have received a ‘notice of visa cancellation under subsection 501(2) of the migration act 1958’ on 24th of December 2011.
The notice provides instructions to appeal this decision which states: ‘you must lodge your application for review within nine (9) days…’.
Please accept this letter as notice of intention to appeal.
I will need further time to prepare the actual appeal and request that you send any advice on procedure and/or application forms.”
That letter was received in an envelope which indicated that it had been sent by prepaid post.
On 31 January 2012 the Tribunal received a facsimile dated 31 January 2012 from the applicant which states as follows:
“ AGS claim that application for review was not lodged in time
I have received a letter from the Australian Government Solicitors office (Their ref: 12004837) which argues that because my application ‘… appears to have been lodged with the tribunal on 10 January’ and that the provisions of the act required lodgement (in my case) ‘… by 9 January 2012’ the Administrative tribunal (sic) has no jurisdiction to review the application.
I lodged the letter for posting with the prison authorities on the 6th of January 2012. As far as I am concerned this is the lodgement date of my appeal. I can prove this but the process of obtaining my mail records (with (sic) I have started) will take some time.
Please proceed accordingly.”
On 2 February 2012 I made a direction that the respondent file and serve “evidence regarding the date of despatch to the applicant of the notice of visa cancellation dated 16 December 2011”.
On 8 March 2012 the respondent filed an affidavit of Steve Pollard, dated 8 March 2012, which states as follows:
“1. I am an officer in the National Character Consideration Centre (‘NCCC’) Section of the Department of Immigration and Citizenship (‘the Department’). I am authorised to make this affidavit on behalf of the Department.
2.I make this affidavit from my own knowledge and from my perusal of the relevant Departmental documents and records.
3.On 16 December 2011, I caused a Notice of Visa Cancellation (‘the Notice’) and two copies of the ‘G-documents’ to be sent to the applicant by registered post to Acacia Prison, Locked Bag 1, Wooroloo WA 6558.
4.It is the usual practice of the NCCC to post correspondence on the same day as the date of that correspondence.
5.I have retained a copy of the correspondence which was sent to the applicant. It is affixed with the registered post sticker with the number 565836140011. Now shown to me marked ‘A’ and annexed to this affidavit is a copy of that correspondence.
6.On 16 December 2011 I put the envelope containing the Notice and G-documents into an internal mail collection box. The standard procedure was that it would be delivered to Converga, the Department’s mail management service.
7.Now shown to me marked ‘B’ and annexed to this affidavit is a copy of an email from Jen Gurry, Team Leader of the Mailroom Team attaching the record of despatch for registered post item number AP565836140011. Ms Gurry states that the item left the Department on 16th December 2011.
8.Now shown to me marked ‘C’ and annexed to this affidavit is a copy of the Converga record of despatch for registered post item AP565836140011.”
Relevant Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Section 29 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) relevantly provides:
“29 Manner of applying for review
(1) An application to the Tribunal for a review of a decision:
(a) shall be in writing; and
(b) may be made in accordance with the prescribed form; and
(c)except if paragraph (ca) or (cb) applies – must contain a statement of the reasons for the application; and
…
(d)if the terms of the decision were recorded in writing and set out in a document that was given to the applicant or the decision is deemed to be made by reason of the operation of subsection 25(5) – shall be lodged with the Tribunal within the prescribed time.
…
Prescribed time for making applications - general
(2)Subject to subsection (3), the prescribed time for the purposes of paragraph (1)(d) is the period commencing on the day on which the decision is made and ending on the twenty-eighth day after:
(a)if the decision sets out the findings on material questions of fact and the reasons for the decision – the day on which a document setting out the terms of the decision is given to the applicant; or
…
Tribunal may extend time for making application
(7)The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.
(8)The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.
(9)Before determining an application for an extension of time, the Tribunal may, if it thinks fit, require the applicant to give notice of the application to a specified person or persons, being a person or persons whom the Tribunal considers to be affected by the application.
(10)If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal, as prescribed, stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.
…”
Migration Act 1958 (Cth)
Section 500(1) of the Act provides that applications may be made to the Tribunal for review of, inter alia, decisions of a delegate of the respondent under s 501. Subsection (6B) of s 500 provides:
“(6B) 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 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.”
Section 501G of the Act relevantly provides:
“ 501(G) Refusal or cancellation of visa – notification of decision
(1)If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a)refuse to grant a visa to a person; or
(b)cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c)sets out the decision; and
(d)specifies the provision under which the decision was made and sets out the effect of that provision; and
(e)sets out the reasons (other than non‑disclosable information) for the decision; and
(f)if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i)states that the decision can be reviewed by the Tribunal; and
(ii)states the time in which the application for review may be made; and
(iii)states who can apply to have the decision reviewed; and
(iv)states where the application for review can be made; and
(v)in a case where the decision relates to a person in the migration zone – sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi)sets out such additional information (if any) as is prescribed.
…
(3)A notice under subsection (1) must be given in the prescribed manner.
…”
Migration Regulations 1994 (Cth)
Regulation 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provides:
“2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
…
(b)the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and
…
(3)Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a)by handing it to the person personally;
(b)by handing it to another person who:
(i)is at the person's last residential or business address known to the Minister; and
(ii)appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii)appears to be at least 16 years of age;
(c)by dating it, and then dispatching it:
(i)within 3 working days (in the place of dispatch) of the date of the document; and
(ii)by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e‑mail; or
(iii) other electronic means;
to the last fax number, e‑mail address or other electronic address known to the Minister.
…
(4)Subject to subregulation (4A), for a document mentioned in paragraph (1)(b):
(a)if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b)if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii)the Minister must give the document in one of the ways mentioned in subregulation (3).
…
(7)If the Minister gives a document to a person by dispatching it by prepaid post…, the person is taken to have received the document:
(a)if the document was dispatched from a place in Australia to an address in Australia ─ 7 working days (in the place of that address) after the date of the document; or
…”
Reasons for Determining that the Tribunal Does Not Have Jurisdiction in This Matter
There is no dispute that the applicant is, and was at all material times, in “the migration zone”, within the meaning of the Act, and, accordingly, subs (6B) of s 500 of the Act is applicable in this case.
Pursuant to subs (6B) of s 500 of the Act an application to the Tribunal for review of the relevant 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)”. Subsection (6B) expressly excludes the application of para (1)(d) and subss (7), (8), (9) and (10) of s 29 of the AAT Act, as a result of which the Tribunal does not have the power to grant an extension of the 9-day time limit prescribed by subs (6B).
Pursuant to subs (6B) of s 500 of the Act, however, the prescribed 9-day time limit only applies and commences to run if the person whose visa was cancelled “was notified of the decision in accordance with subsection 501G(1)”. Paragraphs (c)–(f) of s 501G(1) of the Act prescribe the various requirements with which a written notice given under that subsection must comply. I have considered the Notice of Visa Cancellation, dated 16 December 2011, and I am satisfied that that notice fully complies with
s 501G(1) of the Act and is a valid notice. I am also satisfied, on the basis of Mr Pollard’s affidavit (and the annexures thereto) set out in paragraph 10 above, that that notice was given to the applicant in the manner prescribed by reg 2.55(3)(c) of the Regulations. That being the case, pursuant to reg 2.55(7)(a) the applicant is taken to have received that notice 7 working days after the date of that notice, namely, on 29 December 2011. Although, according to the applicant’s letter of 5 January 2012 (see paragraph 7 above), he actually received that notice on 24 December 2011, it is the deemed date of receipt, namely, 29 December 2011, which, for the purposes of subs (6B) of s 500 of the Act, is to be treated as the date from which the abovementioned prescribed 9-day time limit commences to run.
It follows, pursuant to subs (6B) of s 500 of the Act, that the applicant was required to lodge his application for review with the Tribunal within 9 days after 29 December 2011. Because the 9th day – namely, 7 January 2012 – fell on a Saturday, the prescribed period for lodging the application for review did not expire until Monday 9 January 2012 (see s 36(2) of the Acts Interpretation Act 1901 (Cth)). In order to comply with subs (6B) of s 500 of the Act, therefore, the applicant’s application for review must have been “lodged with the Tribunal” no later than 9 January 2012.
As previously mentioned (see paragraph 7 above), the applicant’s letter dated 5 January 2012 (being the first communication received by the Tribunal from the applicant in this matter) was received by the Tribunal on 10 January 2012. It is very doubtful whether that letter (set out in paragraph 7 above) constituted a valid “application to the Tribunal for a review of the decision” (within the meaning of s 500(6B) of the Act) of the delegate of the respondent, dated 15 December 2011, because it does not “contain a statement of the reasons for the application”, as required by s 29(1)(c) of the AAT Act. However, even if that letter is treated as an “application to the Tribunal for a review of the [delegate’s] decision”, for the purposes of s 500(6B) of the Act, the fact remains that that letter was not received by the Tribunal until 10 January 2012. Accordingly, the relevant “application to the Tribunal for a review”, represented by that letter, was not “lodged with the Tribunal”, within the meaning of s 500 (6B) of the Act, until 10 January 2012 – that is, one day after the expiration of the period prescribed by subs (6B). As previously mentioned, the Tribunal, pursuant to s 500(6B) of the Act, does not have the power to grant an extension of the period prescribed by subs (6B).
It follows that, pursuant to subs (6B) of s 500 of the Act, the Tribunal does not have jurisdiction in this matter: see Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at 496.
I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the order herein of
Deputy President S D Hotop ..........[sgd D Brodie]........................
Administrative Assistant
Dated 28 June 2012
Date of hearing
9 March 2012
Representative of the Applicant
Self-represented
Representative of the Respondent
Mr A Gerrard
Solcitors for the Respondent Australian Government Solicitor
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