Smith and Minister for Immigration and Citizenship

[2011] AATA 777

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 777

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2011/4122

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		FRANCIS GUTHRIE SMITH

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal Senior Member John Handley

Date19 October 2011

PlaceMelbourne

Decision The application to review the decision made by the Minister for Immigration and Citizenship on 31 August 2011 to cancel the applicant’s visa was lodged out of time and therefore, the Tribunal does not jurisdiction.

(sgd) John Handley

Senior Member

PRACTICE AND PROCEDURE – jurisdiction – whether application to review decision lodged out of time – notice of cancellation in prescribed form – applicant in prison – deemed to have received notice seven working days after date of dispatch – notice collected at post office by prison employee – notice given to applicant after time had expired to lodge application ‑ appropriateness of service to persons in prison at a post box address.

Migration Act 1958 s 501, 501G
Migration Regulations 1994 reg 2.54, 2.55

Acts Interpretation Act 1901  s 36(2)

Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419
Re Tran and Minister for Immigration and Citizenship [2011] AATA 21
Re Tupe and Minister for Immigration and Citizenship [2011] AATA 100

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77

REASONS FOR DECISION

2 November 2011 Senior Member John Handley

1.On 14 October 2011 Mr Etuati, on behalf of the Minister for Immigration and Citizenship (the Minister), objected to the Tribunal having jurisdiction to review an application made by the applicant on the basis that it was lodged out of time. I delivered oral reasons at the conclusion of a hearing to determine that issue on 19 October 2011. I decided the application was not lodged within the statutory time limit. A request for written reasons has subsequently been made by Mr Etuati which l now provide pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975 (the AAT Act).

2.Mr Smith, the applicant, lodged an application for review of a decision made by a delegate of the Minister on 27 September 2011. 

3.If the application is not lodged within the statutory time frame prescribed by the Migration Act 1958 (the Act), the Tribunal is prohibited from review.

4.The circumstances giving rise to the lodging of the application may be briefly summarised as follows.

5.It is not in dispute that the applicant has a substantial criminal record within the meaning of s 501(7) of the Act.  Accordingly, a decision was made to cancel his visa because he does not pass the character test (s 501(2)).

6.The applicant was sentenced to a substantial period of imprisonment on 2 November 2006 and has, but for short periods of time, resided at the Ararat Prison in country Victoria.

7.A preliminary hearing was convened by telephone on 19 October 2011 where submissions were heard from the applicant and Mr Eteuati.  A number of documents which were lodged on behalf of the Minister were the subject of examination and submission.  Evidence was also heard from a prison officer. 

8.The events which commenced with notification to the applicant of the intention to cancel his visa, his response by lodging the application with the Tribunal and all events intervening are summarised, with regard also to relevant legislative and regulatory provisions, as follows:

a)The decision finding that the applicant did not pass the character test and the consequent decision to cancel his visa pursuant to s 501(2) of the Act was made on 23 August 2011. The decision (Notice of Cancellation of Visa (the Notice)) and some other documents were attached to a letter dated 31 August 2011. The author of that letter arranged for it to be posted to the applicant by prepaid registered mail. The registered post number is printed on a label and was attached to the letter.

b)The registered letter was dispatched by another officer at the Department of Immigration and Citizenship in the Melbourne office (the Department) on 1 September 2011 (reg 22.5 Migration Regulations 1994 (the Regulations).  A schedule of registered postal items records that the letter had the same registered post number as the label attached to the letter of 31 August 2011. 

c)A document produced by Australia Post, also bearing the same registered postal number, records that the letter of 31 August 2011 was scheduled for delivery at the Ararat post office on 6 September 2011 and was delivered to M Doreen on that date.  I understand that to mean that the letter was received at the Ararat post office on 6 September and M Doreen collected or received it on that day.

d)In his application to the Tribunal, the applicant appended a document acknowledging receipt of the decision of 31 August 2011, on 21 September 2011.  The document which bears the applicant’s signature and that date was also signed by P O Osborne and is also dated 21 September 2011. 

9.In evidence, Ms Osborne, a prison officer at the Ararat Prison said that on 21 September 2011, she was responsible for handing a bundle of documents to the applicant.  The applicant said that bundle of documents contained the decision of 31 August 2011.  Ms Osborne said that those documents would have been delivered to the Ararat Prison on 21 September 2011 pursuant to a practice operating within the prison that mail is either collected by, or distributed to prisoners on the day that the prison receives it. 

10.I was informed that M Doreen is an employee at the Ararat Prison.  Mr Eteuati had arranged to have him available to give evidence if necessary.  Attempts were made to contact him during the hearing, however it was learnt that he had left the precinct of the prison, he did not carry a mobile telephone and it was not known when he would be returning to the prison.  It was intended to have him give evidence to explain why the letter of 31 August 2011 was delivered to or collected by him on 6 September 2011 but was not made available to Ms Osborne for delivery to the applicant until 21 September 2011.  At that date, the statutory time limit for lodging an application with the Tribunal had expired.

11.A notice is a document within the meaning of reg 2.54. Section 501G(1) of the Act sets out the requirements of a notice and s 501G(3) provides that the Minister must give a notice in the prescribed manner. Regulation 2.55 prescribes the manner in which a notice must be given.

12.Regulation 2.55(3) prescribes a number of ways in which a document can be given.  If a choice is made to give the document in accordance with reg 2.55(3)(c), it must be dated and dispatched within three working days of the date of the document by prepaid post or other prepaid means to the person’s last residential, business or post box address known to the Minister.

13.I am satisfied, having read the Notice dated 31 August 2011, that it satisfies s 501G(1) of the Act. I am also satisfied that the Notice, being a document, was dispatched within three working days (on 1 September 2011) by prepaid (registered) post and was addressed to the post box address of the Ararat Prison.  The applicant’s last address known to the Minister is recorded on a number of letters the applicant had written to the Department and which were found within a bundle of documents lodged by Mr Eteuati.  The applicant recorded his address as PO Box 431 Ararat being the post box address of Ararat Prison.  The Notice of 31 August 2011 and the schedule of registered items posted by the Melbourne officer of the Minister on 1 September 2011 record the same address.  The Australia Post receipt at Ararat records that same registered postal item was received.  I am therefore satisfied that the document was received at the post box address.

14.Regulation 2.55(7) provides that where a document is dispatched by prepaid post from a place in Australia to an address in Australia, the person is taken to have received the document ... 7 working days (in the place of that address) after the date of the document.  The Notice was dated 31 August 2011 and dispatched in Australia.  It is deemed to have been received by the applicant on 9 September 2011 being 7 working days after 31 August 2011.

15.Section 500(6B) of the Act provides that an application to this Tribunal for review of a decision made under s 501 must be lodged within nine days after the date that the person received written notice of the decision. The absence of the word working indicates nine calendar days.

16.The ninth day for lodging the application for review after 9 September 2011 fell on 18 September 2011 which was a Sunday.  The next available day for lodging was Monday, 19 September 2011 (s 36(2) of the Acts Interpretation Act 1901). The statutory time limit for lodging the application expired on that date. It therefore follows that the application in the present proceedings, having been lodged on 27 September 2011 was lodged out of time. The provisions of s 500(6B) leave no doubt that the opportunity to extend the time to lodge the application for review pursuant to s 29 of the AAT Act do not apply.

17.The legislative provisions applicable in this proceeding are unduly harsh, particularly for persons in prison who have no control and rely on others to collect and deliver their mail.  The seventh working day, being 9 September 2011 was a Friday.  Nine calendar days subsequently incorporated two weekends.  Applicants in similar circumstances would have five working days only to lodge an application for review.  In the present case, if the Act permitted nine working days to lodge an application, the time to do so would have expired on 23 September 2011.  As the Notice was handed to the applicant on 21 September 2011, he would have been within time to have lodged his application.

18.In the present review, a prison or administrative officer of the Ararat prison collected the registered letter addressed to the applicant on 6 September 2011 but it was not delivered to him until 21 September 2011, by which time the statutory time limit for lodging an application for review had expired.  This unexplained delay causes me concern.

19.The provisions within the Act and the Regulations concerned with service of a notice have been the subject of criticism and comment elsewhere, especially where a notice has been posted to a post box address (Zhang v Minister for Immigration and Citizenship (2007) 161 FCR 419; Re Tran and Minister for Immigration and Citizenship [2011] AATA 21; Re Tupe and Minister for Immigration and Citizenship [2011] AATA 100).

20.I accept that those parts of the Act and the Regulations concerned with service of a notice are within power but the language and practical effect deserve attention.  I acknowledge that the legislative scheme provides administrative certainty for giving notices (Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 77 at 86).  However, it should not cause injustice by unintended consequences as evidenced in the present case.

21.If the Minister gives a notice, by prepaid post, to a post box address, a person is deemed to have received it within seven working days after the date of the document (reg 2.55(7)).  In the case of persons who are incarcerated and who are dependent on prison officials to collect and deliver the mail, consideration should be given to a method of service that will ensure prompt delivery so as not to deny persons their appeal rights.

22.A bizarre scenario emerges as a result of reg 2.55(7). If the Minister has given the document by dispatching it by prepaid post to an address (being a post office box), the person is deemed to have received the document ... in the place of that address.  In the case of a person incarcerated, the document cannot, practically and realistically have been received ... in the place of that address.  The person is in prison, in this case the Ararat Prison, and the place of that address is the Ararat post office.  Unlike other persons in the community, prisoners do not have the freedom to attend the local post office to collect their mail.

23.Officers in the Department have a number of options available to them when giving notices of cancellation. Delivery to a post box address is one only. It is worthy to note that s 494B of the Act does not permit service at a post box address. That option exists only within reg 2.55(3)(c). The Full Court in Zhang noted that distinction and considered a post office box is a type of postal address … to which it is known to be appropriate to correspond with the intended recipient… (at [29-30]).  For the reasons given above, l do not consider that service at a post office box of a prison is appropriate, when other more effective methods of service are available under reg 2.55(3)(c), particularly when the deemed date of receipt is so restrictive (reg 2.55(7)).

24.Part 9 of the Act allows the Minister to cancel visas when non-citizens have a substantial criminal record and do not pass the character test. The Act also allows non-citizens whose visa has been cancelled to apply to the Tribunal for review of the cancellation decision. Time limits are imposed by the Act to ensure administrative certainty. In the case of visa cancellations under Part 9, an application for review must be lodged within nine calendar days. When the non-citizen is incarcerated, the combined effect of reg 2.55(3)(c) and reg 2.55(7) is to potentially deny the non-citizen the opportunity to seek review.

25.As stated above, a prisoner does not have the freedom to collect mail personally or indeed to know that the document is awaiting collection at a post office.  The prisoner must rely on the intervention of the prison officers who collect the mail from the post office, deliver it to the prison where it must first be processed and then distributed.  The internal practices of prisons cause additional steps and therefore delays in the notification to prisoners of the Minister’s decision.  This is not contemplated by the Act or the Regulations which impose strict time limits for lodging an application for review and a rigid provision which deems the date of receipt of a notice.   

26.A notice can be given – under both the Act and the Regulations by handing it to a person, or transmission by facsimile, email or other electronic means. If one of those methods of service was used in this case – and I would suggest in the case of other prisoners – there would always be the opportunity to lodge an application within time. Posting to a post box address is not, in my view, an appropriate method of notification to prisoners. Deeming provisions no doubt cause expediency but should not cause unfairness. I would urge decision makers to effect service on prisoners personally as s 494B(2) and reg 2.55 (3)(a) permits, namely, handing a notice to the person.

27.For the above reasons l was obliged, in law, to find that the decision under review was lodged out of time.  Therefore, the Tribunal does not have jurisdiction to review the decision dated 31 August 2011.

I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr John Handley, Senior Member

Signed:          Olympia Sarrinikolaou

Legal Assistant

Date of Hearing  19 October 2011
Date of Decision  19 October 2011
Date of written reasons                2 November 2011
Advocate for the Applicant          Self-represented

Advocate for the Respondent       Mr T. Eteuati, Clayton Utz