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

[2021] AATA 4818

Setto and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4818 (24 December 2021)

Division:General Division

File Number:          2021/7752

Re:Tareq Mikhael Hanna SETTO

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:24 December 2021

Place:Brisbane

This application is dismissed pursuant to s 42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth) because the Respondent’s decision made on 15 September 2020 is not reviewable by this Tribunal.

..............................[sgd].............................

Senior Member Theodore Tavoularis

Catchwords

PRACTICE AND PROCEDURE – Migration - whether the Tribunal has jurisdiction to review a decision pursuant to s501(3A) of the Migration Act 1958 (Cth) – where Tribunal found it did not have jurisdiction to review decision – where application dismissed pursuant to s42A(4) of the Administrative Appeals Tribunal Act 1975 (Cth)

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)

Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173

Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174

REASONS FOR DECISION

Senior Member Theodore Tavoularis

24 December 2021

1. This application had its initial ventilation before this Tribunal on 2 November 2021 in the form of a Telephone Directions Hearing (“TDH”). During this TDH, a jurisdictional question was raised which required determination prior to the making of any procedural Directions case-managing the application towards a substantive hearing.

2. The issue before the Tribunal is whether it has jurisdiction to hear and determine the substantive application, being a decision to mandatorily cancel the Applicant’s visa pursuant to s 501(3A) of the Migration Act1958 (Cth) (the “Act”). If the Tribunal determines that it does not have jurisdiction to hear and determine this matter, the Tribunal has no ability to continue to review this matter and is required to dismiss the application.

3. Subsequent to the abovementioned TDH, the parties filed written submissions in relation to their respective positions. The Tribunal also received a bundle of material from the Respondent’s representative. The totality of the material comprised:

   ·Applicant’s submissions on jurisdiction (Exhibit A1);

   ·Application made on 21 October 2021 (Exhibit A2);

   ·Respondent’s submissions on jurisdiction (Exhibit R1); and

   ·Respondent’s bundle of material (Exhibit R2).

   BACKGROUND

4. The Applicant is an Iraqi national, born in that country in April 1981. He arrived in Australia in October 2013 as the holder of a Class XB Subclass 200 Refugee visa (“the visa”). On 28 August 2020 at the Sydney Downing Centre District Court, the Applicant was convicted of “Agg sex assault – deprive liberty – SI” and sentenced to a term of imprisonment of nine years, to commence from 8 June 2020. This sentence contained a non-parole period of five years and six months, concluding on 7 December 2025.

5. The Applicant’s offending triggered operation of the mandatory cancellation mechanism in the Act. On 15 September 2020, the Respondent mandatorily cancelled the visa of the Applicant pursuant to s 501(3A) of the Act. It was then incumbent on the Respondent to notify the Applicant in accordance with s 501G of the Act. The relevant notification letter appears in the material now before the Tribunal and is dated 15 September 2020. This notification letter runs for some seven pages[1] and, relevantly, informs the Applicant about the applicable timeframe for him to make necessary “representations” about revocation of the mandatory cancellation decision. The letter says this:

   [1]See R2, RB5, pages 14–19.

   “Opportunity to seek revocation of the original decision to cancel visa

   While your visa has been cancelled and you no longer hold a visa, you have an opportunity to make representations to the Minister about revoking the decision to cancel your visa under s501(3A) (‘the original decision’).

   You are hereby invited to make representations to the Minister about revoking the original decision. The representations must be made in accordance with the instructions outlined below, under the headings ‘How to make representations about revocation of the original decision’ and ‘Timeframe to make representations about revocation’.

   The original decision may be revoked by the Minister under s501CA(4) of the Act if you make representations in accordance with the specified instructions and the Minister is satisfied that:

   ·You pass the character test (as defined by s501 of the Act); or

   ·There is another reason why the original decision should be revoked.

   The full text of s501CA of the Act is included in Attachment 1.

   …

   Timeframe to make representations about revocation

   Under Regulation 2.52(2)[2], any representations you may wish to make in relation to the revocation of the original decision must be made within 28 days after you are given this notice. That means, in order for your representations to be considered, the Required Information […] MUST be received by the Department within 28 days after you are taken to have received this notice.

   As this notice was given to you by hand, you are taken to have received it when it was handed to you.

   Providing the Required Information

   If you decide to make representations to the Minister to seek revocation of the original decision, it is essential that the Required Information is received by the Department within 28 days after you are taken to have received this notice as this timeframe cannot be extended. (As mentioned above, it is recommended that you provide the Required Information by completing the attached Revocation Request Form). If the Required Information is received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider your representations because they would not have been made in accordance with the invitation (as set out in this notice), as required by s501CA(4)(a) of the Act.”[3]

   [Emphasis and underlining in original]

   [2]Migration Regulation 1994 (Cth).

   [3]R2, RB5, pages 15-17.

6. The material contains a signed acknowledgement of receipt of this visa cancellation decision by the Applicant. This receipt is dated 13 October 2020.[4] On the basis of the Applicant’s receipt of the cancellation decision on 13 October 2020, the 28-day deadline for him to make the necessary representations in response to the mandatory cancellation decision expired on 10 November 2020.

   [4]R2, RB6, page 27.

7. On 16 March 2021 - over four months after the 10 November 2020 – the Applicant (via his legal representatives) notified the Respondent of his intention to challenge the abovementioned mandatory cancellation of his visa. The initial correspondence from the Applicant’s legal representative to the Respondent is dated 16 March 2021 and appears in the material.[5] This correspondence (1) confirms that these legal representatives had instructions to act for the Applicant, (2) acknowledges the Respondent’s making of the mandatory cancellation decision on 15 September 2020, (3) includes a completed ‘request for revocation of a mandatory visa cancellation under s501(3A)’ form, a completed Personal Circumstances Form, as well as additional documents in support of the Applicant’s request for revocation, but (4) makes no reference or (provides any explanation) as to why the purported representations were sought to be made over four months out of time.

   [5]R2, RB7, pages 28–30.

8. The Respondent replied to this correspondence by way of a letter dated 19 April 2021, which appears in the material.[6] This responsive letter noted that the mandatory cancellation decision had been made on 15 September 2020 and that any representations about revocation of that decision needed to be lodged within 28 days after the Applicant was taken to have received the invitation. This responsive letter points out that because the necessary representations were not made within the prescribed 28-day timeframe, the Respondent cannot consider revocation of the mandatory cancellation decision made on 15 September 2020.

   [6]R2, RB8, pages 60-61.

9. On 21 October 2021, the Applicant filed an application in this Tribunal.[7] The Applicant answered the application’s question of ‘Date you received the decision you want reviewed’ with 15 Sep 2020.[8] In response to ‘Why do you claim the decision is wrong?’, the Applicant responded with:

   “The client has appointed an authorised recipient to represent him in submitting a request for a revocation of the cancelation on the ground that he has a wife and two kids who are Australian citizens and that he came to Australia as a refugee and does not have the right to enter or live in any other country. the request was deemed to be invalid because the representation was not made within the prescribed period. The client wants the AAT to review the decision on because without an AAT decision there will be legal venue available to him in order to stay with his family.”[9]

   [7]See A2.

   [8]A2, page 4.

   [9]A2, page 5.

   RELEVANT LEGISLATION

10. Section 501 of the Act provides:

    “(3A) The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii) paragraph (6)(e) (sexually based offences involving a child); and

    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.”

11. Section 501CA(3) of the Act relevantly provides:

    “As soon as practicable after making the original decision [that is, the Minister’s decision under s501(3A)], the minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.”

12. Section 501CA(4) of the Act relevantly provides:

    “The minister may revoke the original decision if:

    (a)The person makes representations in accordance with the invitation; and

    (b)The Minister is satisfied:

    (i)     that the person passes the character test (as defined by section     501); or

    (ii)    that there is another reason why the original decision should be revoked.”

13. Regulation 2.52 of the Migration Regulation 1994 (Cth) (“the Regulations”) provides:

    1This regulation applies to representations made to the Minister under paragraphs 501C(3)(b) and 501CA(3)(b) of the Act.

    2The representations must be made:

    (a)for a representation under paragraph 501C(3)(b) of the Act – within 7 days after the person is given the notice under subparagraph 501C(3)(a)(i) of the Act; and

    (b)for a representation under paragraph 501CA(3)(b) of the Act – within 28 days after the person is given the notice and the particulars of relevant information under subparagraph 501CA(3)(a) of the Act.”

14. The Tribunal’s power to review decisions involving the mandatory cancellation of visas appears in s 25(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the “AAT Act”). This section relevantly provides as follows:

    “25 Tribunal may review certain decisions

    Enactment may provide for applications for review of decisions

    1An enactment may provide that applications may be made to the Tribunal:

    (a)for review of decisions made in the exercise of powers conferred by that enactment; or

    (b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”

15. For present purposes, the relevant “enactment” comprises specific and relevant components of the Act. In particular, s 500 of the Act provides as follows:

    “Review of decision

    (1) Applications may be made to the Administrative Appeals Tribunal for review of:

    […]

    (b)decisions of a delegate of the Minister under section 501 (subject to subsection (4A)); or

    (ba)decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa;

    […]”

    [My emphasis and underlining]

16. At first blush, it might be thought that relief for the Applicant is at hand via the operation of s 500(1)(b) of the Act. Prima facie, the abovementioned mandatory cancellation decision made on 15 September 2020 could be said to comprise a decision of a delegate of the Minister under s 501. However, this section is conditioned by section 500(4A) of the Act, which relevantly provides that:

    “(4A) The following decisions are not reviewable under this section, or under Part 5 or 7:

    […]

    (c)a decision of a delegate of the Minister under subsection 501(3A) to cancel a visa.”

    [My emphasis and underlining]

17. Therefore, the decision (made on 15 September 2020) now seeking review via the application filed in this Tribunal on 21 October 2021 is legislatively precluded from review. For this Tribunal to have jurisdiction, it is necessary for the Applicant to have received a decision pursuant to s 501CA(4) of the Act.[10]

    [10]Section 500(1)(ba) of the Migration Act 1958 (Cth).

    THE APPLICANT’S CONTENTIONS

18. In submissions filed on his behalf, the Applicant does not seem to cavil with the date of 13 October 2020 as the date on which he received notification of the decision to mandatorily cancel his visa pursuant to s 501(3A) of the Act. The written submissions go on to say this:

    “D. On 13 October 2020, the applicant was handed the notice by Hunter Prison staff without being given any explanation of the content of the notice or informed of the date by which the representations must be made if he was to avoid the strict consequences of failing to make representations. The applicant submits that he was asked to sign at the place marked for him on the acknowledgement receipt and that the date below his signature, as it appears on that document, was written by the prison staff.”[11]

    [11]A1, page 2.

19. As best as I understood his contentions, the Applicant propounds a consequent position of some kind of denial of a “fair opportunity to make request for cancellation” and that he was denied “procedural fairness” at the time of his receipt of the mandatory cancellation decision on 13 October 2020. On these two grounds, it is contended that this Tribunal has jurisdiction to proceed with review of the Respondent’s mandatory cancellation decision pursuant to s 501(3A) of the Act:

    “A. The applicant contends that he was not allowed a fair opportunity to make a request for revocation of the cancellation of his visa and that the of [sic] procedural fairness was not accorded to him at the time of handing him the notice of cancellation.

    B. It is respectfully submitted that tribunal does have jurisdiction on the review application he has made, taking into consideration the issues that were raised in the cases outlined above.

    5. Disposition

    For the reasons set out above, the Applicant submits that the Tribunal has jurisdiction to review the Respondent’s decision, the subject of the application before the Tribunal.”[12]

    [12]A1, page 5.

20. In the material there is correspondence dated 23 June 2021 from a Services & Program Officer at Hunter Correctional Centre to the National Character Cancellation Centre (NCCC) Revocation inbox. It contains the following message:

    ‘Good afternoon,

    Inmate SETTO has stated he has missed his 28 day deadline to try and fight his 501 via cancellation. As per our records he requested to send out the documents from the centre to his wife on 05/02/2021, but stated it took 40 days before the documentation reached his wifes [sic] address to assist as he has poor English and struggles to read and write.

    Is there anyway [sic] he can still apply to fight the current cancellation or is there an avenue he can take for this?’[13]

    [13]R2, RB9, page 62.

21. The language of Regulation 2.52(2)(b) is mandatory because it stipulates that “The representations must be made…” within the 28-day period. The 28-day period cannot be extended. There can be no question that (1) the prescribed period to make those representations in support of revocation of the mandatory cancellation decision is (pursuant to Regulation 2.52(2)(b)) 28 days and (2) the Applicant has failed to make those representations within that 28-day period.

22. The Applicant’s purported reference to, and reliance upon, the authorities of Sillars[14] and EPL20[15] is, with respect, misplaced. Those cases were concerned with whether the Applicant had complied with the 28-day period (pursuant to Regulation 2.55) to make representations to the Minister for revocation in circumstances where a subsequent decision to refuse the revocation of the mandatory cancellation pursuant to s 501CA of the Act was made. Here, the issue before this Tribunal is whether it has jurisdiction to review a decision pursuant to s 501(3A) of the Act.

    [14]Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.

    [15]EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173.

    THE RESPONDENT’S CONTENTIONS

23. The Respondent contends that this Tribunal does not have jurisdiction to entertain any application for review of the mandatory cancellation decision pursuant to s 501(3A) of the Act. The Respondent says that the Tribunal’s jurisdiction is only enlivened where the Respondent has made a decision pursuant to s 501CA(4) of the Act. The cumulative effect of this submission is that the Tribunal does not have jurisdiction to entertain the subject application filed on 21 October 2021 and that the application should be dismissed pursuant to paragraph 42(4) of the AAT Act.

24. The Respondent further contends that due to:

    (a)the Applicant’s signed receipt of the mandatory cancellation decision on 13 October 2020;

    (b)the operative effect of rule 2.52 of the Regulations compelling the Applicant to make the necessary representations within 28 days;

    (c)the Applicant’s failure to make those representations by on or before the 28^th day comprising 10 November 2020; and

    (d)the Applicant purporting to make those representations on 16 March 2021, over 4 months out of time;

    – the Applicant has consequently failed to make the necessary representations pursuant to the Respondent’s invitation. This has resulted in the Minister not having the power under section 501CA(4) of the Act to consider revocation of the Applicant’s mandatory visa cancellation. Therefore, no decision has been made not to revoke the cancellation pursuant to section 501CA(4) of the Act.

    DISPOSITION

25. There can be no question, nor is it in contention, that the decision currently before the Tribunal seeking to be reviewed was made pursuant to s 501(3A) of the Act dated 13 October 2020. Similarly, the Applicant has failed to make representations within the prescribed time (pursuant to Regulation 2.52(2)(b)) to the Respondent and therefore has not received a decision pursuant to s 501CA(4) of the Act.

26. For the above reasons, I conclude that this Tribunal does not have jurisdiction to review the decision comprising the subject matter of the application filed by the Applicant on 21 October 2021.

    DECISION

27. I accordingly dismiss the substantive application pursuant to s 42A(4) of the AAT Act.

I certify that the preceding 27 (twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis.

..................................[sgd]......................................

Associate

Dated: 24 December 2021

Date of hearing:	2 November 2021
Solicitors for the Applicant:	Alsudani Migration
Solicitors for the Respondent:	Clayton Utz