Wilde and Minister for Immigration, Multicultural and Indigenous Affairs

[2005] AATA 840

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 840

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2005/515

GENERAL ADMINISTRATIVE DIVISION		)
Re		SANDRA WILDE

Applicant

And MINISTER FOR IMMIGRATION. MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Senior Member B J McCabe

Date31 August 2005

PlaceBrisbane

Decision The application for an extension of time is rejected. The Tribunal does not have jurisdiction.

..................[Sgd].......................

SENIOR MEMBER

CATCHWORDS

IMMIGRATION – DEPORTATION – visa cancellation pursuant to s 501(2) of the Migration Act – appeal lodged out of time – Tribunal has no jurisdiction to extend the time for the applicant to appeal.

Migration Act 1958 (Cth) ss 500, 501

REASONS FOR DECISION

31 August 2005 Senior Member B J McCabe

1. Sandra Wilde has asked the Tribunal to hear her application to review a decision that her visa be cancelled. The decision was made by a delegate of the Minister under s 501(2) of the Migration Act 1958 (the Act). The decision was communicated to her in a letter dated 16 March 2005. There is no dispute that she received the letter by, at the latest, 21 March 2005. (Ms Wilde signed a receipt acknowledging the letter was delivered that day.) She agreed the letter included advice about her appeal rights.

2.      The applicant is currently serving a sentence of imprisonment. She may be eligible for parole as early as September this year. She is a New Zealand citizen. She has lived in Australia for many years. A number of family members reside here. She is particularly concerned about her elderly father. He has cancer, and he is not expected to live for much longer.

3. Ms Wilde’s visa was cancelled under s 501(2) after the delegate judged she was not a person of good character. Ms Wilde told the Tribunal she accepted the decision at the time it was communicated to her because she had resolved to return to New Zealand. She expected she would be able to take her sickly father with her. After the decision was made, it became clear her father could not be moved to New Zealand because his condition was deteriorating. She wants to be able to say in Australia at least until her father dies so she can see him and offer whatever comfort she can provide.

4.      The applicant discussed the possibility of an appeal with immigration officials. She was advised in a letter dated 27 July 2005 that she should contact the Tribunal to discuss whether an extension of time could be granted. Her application for review was received at the Tribunal on 9 August 2005.

5. The Tribunal ordinarily has the discretion to grant extensions of time pursuant to s 29(7) of the Administrative Appeals Tribunal Act 1975. But that is not the case here. Section 500(6B) of the Migration Act provides:

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.

6. The provision unambiguously excludes the operation of s 29(7) of the Administrative Appeals Tribunal Act 1975. There is no power to give an extension of time if the application is not filed within the 9 day time limit provided for in s 500(6B). There is no question that the decision in this case relates to a person in the migration zone as defined in s 5.

7.      The application for review was not filed within the 9 day time limit in this case. It follows the application for an extension of time must be rejected. The decision under review cannot be challenged in this Tribunal.

I certify that the 7 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  26 August 2005
Date of Decision  31 August 2005
The applicant appeared in person.
The respondent was represented by Ms Bennett, solicitor.