Uvea and Minister for Home Affairs (Migration)

[2018] AATA 1356

Uvea and Minister for Home Affairs (Migration) [2018] AATA 1356 (23 May 2018)

Division:GENERAL DIVISION

File Number:  2018/2545

Re:Loketi Uvea

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Chris Puplick AM, Senior Member

Date:23 May 2018

Date of written reasons:        25 May 2018

Place:Sydney

The Tribunal does not have jurisdiction to hear the application for review.

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Chris Puplick AM, Senior Member

CATCHWORDS

PRACTICE AND PROCEDURE – Jurisdiction – whether Tribunal has jurisdiction to review matter – mandatory cancellation of visa – application for revocation of cancellation out of time – no reviewable decision – delivery of mail to inmates in custodial institutions – no jurisdiction found

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

REASONS FOR DECISION

Chris Puplick AM, Senior Member

25 May 2018

Background

1. The matter before the Tribunal concerns an application by Mr Loketi Uvea for an extension of time to lodge an appeal against a decision by a delegate of the Minister under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This section mandates that where a non-citizen has been convicted of an offence and sentenced to a term of imprisonment of more than twelve months, any visa which they hold must be cancelled.

2. Mr Uvea held a Class BS Subclass 801 Partner visa granted on 17 May 2012. He is married to Ms Soana Pahulu who is an Australian citizen by birth. They have three minor children who are Australian citizens.

3. Mr Uvea was sentenced to a term of imprisonment of 20 months on 23 August 2017. The details of that and previous criminal convictions are not immediately germane to this determination.

4. On 2 November 2017, Mr Uvea was sent a letter by the Department notifying him of the mandatory cancellation of his visa and, as provided by section 501CA(3)(b) of the Act, he was invited to make representations to the Department as to why the mandatory cancellation should be revoked.

5. That section of the Act requires that the application must be made “within the period and the manner ascertained in accordance with the regulations” in order to be further considered.

6. Section 2(b) of Regulation 2.52 of the Migration Regulations 1994 (Cth) (the Regulations) specifies, inter alia, that such an application “must be made… within 28 days.”

7. The notification letter was dated 2 November 2017.

8. By operation of reg 2.55(7), Mr Uvea is taken to have received the letter on 13 November 2017. It is important to note that the letter was addressed to Mr Uvea at the Post Box address of the Cessnock Correctional Centre, NSW.

9. Mr Uvea was thus required to make the revocation request submission by 11 December 2017.

10. There is documentation before the Tribunal which includes a form signed by Mr Uvea acknowledging receipt of the section 501(3A) notification, however, crucially, it is not dated. There is no way of knowing (from the written evidence and without the benefit of Mr Uvea’s direct testimony) when this notification came into his hands.

11. There is however a document headed “Request for revocation of a mandatory visa cancellation under S501(3A)” which is signed by Mr Uvea and dated 11 December 2017.

12. There is no evidence of when this letter was sent, however the letter was not received by the Department until 21 December 2017.

13. It should be noted that, regardless of the date Mr Uvea received the notification, had his request (para 11 above) been faxed or emailed to the Department on the day it was signed, it would have met the statutory requirements for lodging.

14. As 21 December 2017 was outside the 28 days as prescribed, this resulted in the Department declining to take any further action to process or consider the application and it so notified Mr Uvea on 11 January 2018.

15. Mr Uvea’s wife, on 31 January wrote to the National Character Cancellation Revocations section of the Department (the appropriate authority) to explain that her husband had posted the letter in question before the expiry of the 28 days, although given that some of the documents were signed and dated on 11 December, it could not have been before that date.

16. On 6 May 2018 Mr Uvea lodged an application with this Tribunal for a review of the “decision” of 11 January 2018.

    Considerations: Jurisdiction

17. Unfortunately for Mr Uvea, that notification of 11 January 2018 was not a decision. It was merely advice that, as his original letter seeking revocation review was received out of time, no further action was contemplated by the Department.

18. When applications seeking a review of a mandatory visa cancellation come before the Tribunal, they come as a request for a review of a decision made by a delegate of the Minister not to revoke the mandatory cancellation. In this instance, Mr Uvea has effectively requested a review of the mandatory cancellation itself - a decision which, in the first instance, must have been made by an independent reviewer within the Department.

19. Such a decision has not been made because Mr Uvea’s request for it was deemed to be out of time and as a result, the Department declined to act further upon it. This decision not to commence a review is not a reviewable decision and hence does not come within the provisions of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal can only review decisions which have been made. It has no power to review advice or notifications which are themselves, not decisions.

20. Given that neither the mandatory cancellation, nor the notification of receipt of a review application out of time are not decisions, but merely the formal advice as to the operations of the statutory provisions, there is nothing for the Tribunal to review.

21. Hence, there is no jurisdiction for this Tribunal to exercise any further powers and the application for review from Mr Uvea has no basis for being entertained and must be dismissed.

    Commentary: Unique Circumstances of Inmates in Custodial Institutions

22. However, the Tribunal regards it as important to make a point for consideration by the Ministry when dealing with correspondence sent to people who are in custodial settings.

23. The operation of custodial settings are obviously significantly different from those in the general community and this applies to the receipt and despatch of mail in particular.

24. When mail is received in custodial institutions, it may very well be subject to both inspection and delay in delivery to the addressed inmates. There are some statutory provisions which require that mail be delivered unopened to inmates, but this is not necessarily the case.

25. All mail is subject to scanning and screening for security purposes. There is also no guarantee of same-day delivery from receipt in a custodial institution post box to the addressed inmate.

26. Depending on matters such as local policy, scheduled mail delivery dates, lock downs, individual disciplinary arrangements and the like, mail received on any particular day may be delayed for several days before delivery to the addressed inmate.

27. It is thus unsafe, in relation to custodial inmates, to assume, that the seven-day rule imposed by the Regulations will always be valid. It is entirely possible that Mr Uvea received the Department’s letter several days after 13 November 2017, in which case his appreciation of the commencement of the 28 day requirement would be affected materially.

28. Similarly, this is the instance for inmate mail being forwarded by the correctional authorities. Again, it is entirely possible that Mr Uvea gave his letter to the authorities on a particular date, but they did not consign it to the ordinary postal service for several days thereafter.

29. Inmates of the custodial system are already in a position of disadvantage in relation to any number of matters and it is clear that one of these may relate to the receipt and despatch of correspondence, some of which will be attended by statutory time limit requirements.

30. This is a matter which the Department may care to consider in its dealings with inmates (and immigration detainees) at some time in the future.

    Conclusion

31. For the present however, despite these misgivings, for the reasons set out above, the Tribunal finds that it has no jurisdiction in this matter.

I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member

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Associate

Dated: 25 May 2018

Date(s) of hearing:	23 May 2018
Advocate for the Applicant:	S Pahulu
Solicitors for the Respondent:	L Crick, Clayton Utz