Turaga and Minister for Immigration and Citizenship
[2010] AATA 270
•12 April 2010
Administrative Appeals Tribunal
[2010] AATA 270
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2010/1287
General Administrative Division )
Re: George Turaga
Applicant
And: Minister for Immigration and Citizenship
Respondent
ORDER
Tribunal: Deputy President S D Hotop
Date: 12 April 2010
Place: Perth
Pursuant to section 500 (6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction to deal with this application for review.
..........[sgd S D Hotop]........
CATCHWORDS
PRACTICE AND PROCEDURE – jurisdiction – applicant’s visa cancelled – applicant notified of cancellation decision on 19 March 2010 – applicant lodged application for review with Tribunal on 31 March 2010 – 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 19 March 2010 – applicant’s application for review lodged with Tribunal after expiration of statutory 9-day period – Tribunal does not have jurisdiction in respect of application for review
Migration Act 1958 (Cth), s 500(6B) and s 501G(1)
Migration Regulations 1994 (Cth), reg 2.55
Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494
REASONS FOR ORDER
| 16 April 2010 | Deputy President S D Hotop |
Introduction
On 12 April 2010 I made an order in this application in the following terms:
“ Pursuant to section 500(6B) of the Migration Act 1958 (Cth) the Tribunal does not have jurisdiction to deal with this application for review.”
On that occasion I stated orally my reasons for making that order.
On 13 April 2010 the Tribunal Registry received a written request from the office of the Australian Government Solicitor, representing the Minister for Immigration and Citizenship (“the respondent”), for a statement in writing of the reasons of the Tribunal for making the abovementioned order.
A statement of my reasons for making that order follows.
Relevant Factual Background
The following relevant background facts appear from documents lodged with the Tribunal by George Turaga (“the applicant”), and by the respondent, and from the relevant Tribunal Registry file, and are not in dispute.
On 10 March 2010 a delegate of the respondent cancelled the applicant’s Class BS Partner (Residence) Subclass 801 (Spouse) visa under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
Written notice of the cancellation of the applicant’s visa, dated 19 March 2010, was given to the applicant by the Department of Immigration and Citizenship (“the Department”) by hand-delivery to him on 19 March 2010. An acknowledgement of receipt of that notice was signed by the applicant and by a witness, and dated 19 March 2010.
The applicant has applied to this Tribunal under s 500 of the Act for review of the delegate’s decision of 10 March 2010. The applicant’s application for review is dated 20 March 2010 but it was not received by the Tribunal’s Western Australia Registry, to which it was addressed, until 31 March 2010.
Relevant Legislation
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 Minister 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.
…”
Regulation 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provides:
“2.55Giving 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).
…
(5)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.
…”
Reasons for Determining that the Tribunal does not have Jurisdiction in this Application
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 the Administrative Appeals Tribunal Act 1975 (Cth), 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) prescribe the various requirements with which a written notice given under that subsection must comply. I have considered the Notice of Visa Cancellation and the documents enclosed therewith which were given to the applicant by the Department on 19 March 2010 and I am satisfied that that notice fully complies with s 501G(1) of the Act and is a valid notice. That notice was, furthermore, given to the applicant in the manner prescribed by reg 2.55(3)(a) of the Regulations, and, pursuant to reg 2.55(5), the applicant is taken to have received that notice when it was handed to him on 19 March 2010.
It follows, pursuant to subs (6B) of s s500 of the Act, that the applicant was required to lodge his application for review with the Tribunal within 9 days after 19 March 2010. Because the 9th day – namely, 28 March 2010 – fell on a Sunday, the prescribed 9-day period expired on Monday, 29 March 2010 (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 29 March 2010.
As previously mentioned, the applicant’s application for review was not received by the Tribunal, and was thus not “lodged with the Tribunal” within the meaning of subs (6B) of s 500 of the Act, until 31 March 2010 – that is, 2 days after the expiration of the 9-day period prescribed by subs (6B). As also previously mentioned, pursuant to subs (6B) the Tribunal does not have the power to grant an extension of the 9-day 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 respect of the applicant’s application for review: see Pomare v Minister for Immigration and Citizenship (2008) 167 FCR 494 at 496.
..........[sgd S D Hotop]........
1
2
0