Singh and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2031

Singh and Minister for Immigration and Border Protection (Migration) [2017] AATA 2031 (1 November 2017)

Division:General Division

File Number(s):      2017/5637

Re:Amritpal Singh

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President S A Forgie

Date:1 November 2017  

Place:Melbourne

The Tribunal decides to:

dismiss the applicant’s application for review of a decision made by a delegate of the respondent to refuse to grant a Bridging E (Class WE) visa to the applicant because the application was not lodged within the nine day time limit prescribed by s 500(6B) of the Migration Act 1958.

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

Deputy President S A Forgie

Catchwords

MIGRATION – visa refusal on character grounds – whether application for review lodged within time – nine day time limit – application not lodged within time- no jurisdiction

Legislation

Administrative Appeals Tribunal Act 1975 ss 3, 25, 29

Migration Act 1958 ss 500, 501

Tribunals Amalgamation Act 2015 s 3 and Sch 1 and item 40

REASONS FOR DECISION

Deputy President SA Forgie

1. Mr Amritpal Singh applied for a Bridging E (Class WE) visa (WE visa). In a notice dated 29 March 2017, the Department of Immigration and Border Protection (DIBP) told him that the Minister for Immigration and Border Protection (Minister), or his delegate, intended to consider whether there were grounds to refuse him a visa under s 501(1) of the Migration Act 1958 (Migration Act) and, if so, whether he should be refused a WE visa.  After considering the matters Mr Singh put forward in support of his not being refused that visa, a delegate of the Minister decided on 7 September 2017 to refuse to grant it to him. 

1. The Department notified Mr Singh of the delegate’s decision in a letter dated 8 September 2017 and delivered to him by hand.  The letter also advised him of his right to ask the Tribunal to review the delegate’s decision but reminded him that he had to lodge his application within nine days after the day on which he was notified of the decision.  Mr Singh lodged his application for review in the Tribunal on 19 September 2017.  As that was outside the nine day time limit and after giving Mr Singh an opportunity to show that he had sent his application to the Tribunal within the time limit, I have decided that the Tribunal does not have jurisdiction to review the decision and have dismissed his application.  At the hearing, Mr Singh asked me to give him written reasons for the decision that I make.

CONSIDERATION

General principles

1. The Tribunal’s power to review a particular decision depends on its receiving an application for its review from a person affected by that decision.[1] Section 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) provides that:

   “An 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.”

[1] Before its amendment by the Tribunals Amalgamation Act 2015 (s 3 and Schedule 1, Item 40), s 25(4) of the AAT Act provided that: “The Tribunal has power to review any decision in respect of which application is made to it under any enactment.” Since its amendment, what was expressly stated by s 25(4) must now be understood by implication.

1. Where an enactment provides that an application may be made to the Tribunal, it may also specify other matters including the conditions subject to which applications may be made. That is the effect of s 25(3)(c). It may also include provisions adding to, excluding or modifying the operation of any of the provisions of various sections specified in s 25(6)(a). Those sections include section 29(1)(d), which requires an application to be lodged within the “prescribed time”.  What amounts to the “prescribed time” is determined by reference to ss 29(2) and (3) of the AAT Act. As a general rule, the Tribunal may extend the time within which a person may make an application for review of a decision. That general rule is the subject of ss 29(7), (8), (9) and (1) of the AAT Act.

   Applying the general principles     

1. The first step, then, is to identify the “enactment” under which the decision was made. In this case, the decision to refuse to grant Mr Singh a WE visa was made under s 501(1) of the Migration Act. Therefore, the “enactment” is the Migration Act.[2] The second step is to identify whether the Migration Act provides that applications may be made to the Tribunal. It does so in s 500 which provides, in so far as it is relevant in this case:

   [2] The Migration Act is an “enactment” within the meaning of s 3(1) of the AAT Act.

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

   (a)…

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

   (c)…

   …”

The qualification in s 500(4A) does not apply in Mr Singh’s case and so he was, having regard to the terms of s 500(1)(b), entitled to make an application for review of the decision made under s 501(1) to refuse to grant him a WE visa.

1. That, however, is not the end of the matter because I must check whether the Migration Act has specified any conditions that must be met before an application may be made or whether there have been any addition to, exclusion or modification of provisions of the AAT Act that would otherwise apply. The Migration Act does set out a condition in s 500(6C) relating to the documents that must be filed with an application by a person who, like Mr Singh, is in the migration zone. Mr Singh met that condition.

1. Section 500(6B) is a modification of the provisions of s 29 of the AAT Act. It provides, again in so far as it is relevant to the facts of this case, that:

   “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) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 do not apply to the application.”

1. The effect of s 500(6B) is to exclude the general rules that apply to the prescribed time within which an application may lodge an application for review. It limits what is normally a 28 day period to a nine day period. By providing that ss 29(7), (8), (9) and (10) of the AAT Act do not apply to the application, s 500(6B) has removed the Tribunal’s power to extend the nine day period. The Tribunal has no discretion in the matter and must strictly apply the nine day time limit.

1. When Mr Singh lodged his application on 19 September 2017, he did so more than nine days after he was notified of the delegate’s decision in a letter dated and delivered to him by hand on 8 September 2017.  As I have said, I have no discretion to extend that nine day time limit.  Mr Singh said that he tried to send the application within time by facsimile message from the Villawood Immigration Detention Centre (VIDC) where he was located but that it did not work.  He advised at the hearing and again in an email dated 6 October 2017 that he had asked the SERCO manager to write a letter confirming that there had been issues with the facsimile machine so that he could send a copy of its confirmation to the Tribunal.  A copy of a ‘Detainee Request Form’ that he had submitted to SERCO to that effect was attached to his email.  To date, the Tribunal has not received a letter from SERCO in the matter or further information from Mr Singh but it has received an email dated 12 October 2017 from the Minister’s solicitor, Mr Brown, stating that his instructions were that the VIDC:

   “… fax and computer systems experienced reliability problems, causing unavailability, during the last fortnight in August 2017 and on 9 September 2017.  The facsimile system was operational during the period 10/18 September 2017, with facsimiles being sent and received throughout this period.

   Two attempts were made to send a facsimile from the La Trobe unit facsimile machine at VIDC to the Migration and Refugee Division of the Tribunal’s facsimile number (03 8600 8501) on 18 September 2017 at 5.19 pm, and on 19 September 2017 at 1.31 pm, neither obtained an answer tone …”

1. As Mr Brown submitted, even if the attempts to lodge the application on 18 and 19 September 2017 had been successful, Mr Singh’s application would not have been made within the time period required by s 500(6B) i.e. within nine days after 8 September 2017 when he was notified of the Minister’s decision. He would have been either one or two days late as the last day on which he could lodge his application for review was 17 September 2017.

DECISION

1. For these reasons, I find that Mr Singh had not made a valid application because he had not complied with the requirements of s 500(6B) of the Migration Act. As the Tribunal only has power to review a decision if an application has been made to it in accordance with the conditions and time limits prescribed in the AAT Act as modified by the Migration Act; I do not have power to review the decision to refuse to grant a WE visa to him. Therefore, I have dismissed his application as it has not been properly made and the Tribunal does not have jurisdiction to review the delegate’s decision to refuse to grant him a WE visa.

I certify that the preceding 11 (eleven) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie

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

Associate

Dated:  1 November 2017

Date of hearing:

Date of last submission:

4 October 2017

12 October 2017

Applicant:

Representative for the Respondent:

Self-represented

Mr David Brown
Australian Government Solicitor