Wilkowski and Minister for Home Affairs (Migration)

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Wilkowski and Minister for Home Affairs (Migration) [2019] AATA 4097 (2 October 2019)

Division:GENERAL DIVISION

File Number(s):      2019/5497

Re:Jacub Wilkowski

APPLICANT

AndMinister for Home Affairs

RESPONDENT

Decision

Tribunal:Member Burford 

Date:02 October 2019

Place:Perth

The Tribunal dismisses the application for review.

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

Member Burford

Catchwords

PRACTICE AND PROCEDURE – cancellation of Applicant’s visa under s 501(2) of the Migration Act 1958 – whether application for review out of time – whether the Applicant was effectively notified of the cancellation decision in accordance with regulation 2.55 of the Migration Regulations 1994 – application dismissed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth) – s 42A(4)

Migration Act 1958 (Cth) – ss 494B(4)(c), 500(1)(ba), 500(6B), 501, 501CA(4), 501G, 501G(1)(f), 501G(3)

Migration Regulations 1994 (Cth) – regs 2.55, 2.55(3), 2.55(3)(c), 2.55(3)(c)(ii) 2.55(7), 2.55(9)

Cases

Adhikari v Minister for Immigration and Border Protection [2018] FCCA 1459

Ali v Minister for Home Affairs [2019] FCA 1102

Anaki and Minister for Immigration and Citizenship [2012] AATA 116

Auimatagi and Minister for Immigration and Citizenship [2012] AATA 26

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

BMY18 v Minister for Home Affairs & Anor [2019] FCCA 1381

BOQ15 v Minister for Immigration & Anor [2019] FCCA 1477

BUY18 v Minister for Immigration & Anor [2019] FCCA 1787

CAV18 v Minister for Immigration & Anor [2019] FCCA 1921

Chadwick and Minister for Immigration [2012] AATA 529

CZI18 v Minister For Home Affairs & Anor [2019] FCCA 2080

ELM18 v Minister for Home Affairs & Anor [2019] FCCA 2108

EFX17 v Minister for Immigration and Border Protection [2018] FCCA 3179

GAV18 v Minister for Home Affairs [2019] FCA 1259

Gonzales and Minister for Immigration and Citizenship [2011] AATA 812

Lesianawai and Minister for Home Affairs (Migration) [2019] AATA 2947

Logova and Minister for Immigration and Citizenship [2011] AATA 955

Mahia and Minister for Immigration and Citizenship [2011] AATA 789

Matete v Minister for Immigration & Anor [2008] FMCA 573

Matete v Minister for Immigration and Citizenship [2008] FCA 1876

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

Ngapera and Minister for Immigration and Citizenship [2012] AATA 24

Ngo v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1594

Sainju v Minister for Immigration and Citizenship [2010] FCA 461

Scott and Minister for Immigration and Citizenship [2012] AATA 400

Singh v Minister for Immigration & Anor [2019] FCCA 2106

Singh v Minister for Home Affairs & Anor [2019] FCCA 2153

Smith and Minister for Immigration and Citizenship [2011] AATA 777

Tay v Minister for Immigration and Citizenship and Another (2010) 183 FCR 163

Tran and Minister for Immigration and Citizenship [2011] AATA 21

Tupe and Minister for Immigration and Citizenship [2011] AATA 100

Wilson and Minister for Immigration and Citizenship [2011] AATA 325

Wilson v Minister for Immigration and Citizenship [2012] FCA 1421

Xie v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 172

Zhang v Minister for Immigration and Citizenship [2007] FCAFC 151

Secondary…

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Details
Case
[2019] AATA 4097
Decision Date

CaseChat Overview and Summary

The applicant, Mr Wilkowski, sought review of a decision by the Minister for Home Affairs to refuse to revoke the cancellation of his visa. The Administrative Appeals Tribunal was required to determine whether Mr Wilkowski's application for review was lodged within the prescribed time limit. This involved considering whether the applicant was effectively notified of the cancellation decision in accordance with the Migration Act 1958 and the Migration Regulations 1994.

The primary legal issues before the Tribunal were whether the notification of the decision complied with the requirements of section 501G of the Migration Act, the method of delivery of the notification, when the applicant was deemed to have received the notification, and consequently, when the application for review was required to be lodged. A further issue was whether the Tribunal had the power to extend the time for lodging the application if it was found to be out of time.

The Tribunal considered Regulation 2.55(9) of the Migration Regulations, which addresses errors in the method of giving a document. It noted that the applicant was notified by registered post to the correctional centre where he was incarcerated. While an email from the Department to the prison on 14 August 2019 indicated the notification package was being mailed and advised the prison to hand it to the applicant as soon as possible, stating the applicant would be taken to receive notification when the package was handed to him, the formal notification letter dated 13 August 2019 stated the applicant was taken to have received it seven working days after the date of the letter. The Tribunal found that the applicant was taken to have received the notification on 22 August 2019, making the deadline for lodging the review application 2 September 2019. As the application was lodged on 4 September 2019, it was out of time. The Tribunal affirmed that it had no power to extend the time for lodging an application for review of a decision under section 501 of the Migration Act.

Consequently, the Tribunal dismissed the application for review as it was lodged out of time and the Tribunal lacked the power to extend the time for lodgement.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

3. Oral submissions were made by both parties. The Applicant also answered questions put to him by the Tribunal to clarify his position on submissions made by the Respondent and to confirm his understanding of the Respondent’s submissions. background 4. The Applicant was notified of the Delegate’s decision by letter dated 13 August 2019. That letter was sent to the Applicant, by registered post, care of the postal address for the correctional centre where he was incarcerated. The details of the notification of the Delegate’s decision by delivery to the Applicant are dealt with further below. 5. On 4 September 2019, the Applicant applied to the Administrative Appeals Tribunal 
(the Tribunal) for review of the Delegate’s decision.3. THE MATERIAL 6. The following material was before the Tribunal:1. the Applicant’s written submissions of jurisdiction dated 20 September 2019 including Australia Post tracking record (Exhibit A1);2. the Applicant’s application for review letter dated 30 August 2019 and received by the Tribunal on 4 September 2019 (the application for review) (Exhibit A2); 3. documents accompanying the application for review – partial copy of the letter notifying the Applicant of the Delegate’s decision dated 13 August 2019 and statement of reasons dated 12 August 2019 (Exhibit A3);4. the Respondent’s written submissions on jurisdiction received by the Tribunal on 18 September 2019 (Exhibit R1);5. a copy of material sent to the Applicant as part of the notification of the Delegate’s decision including the letter dated 13 August 2019 notifying of the Delegate’s decision, statement of reasons dated 12 August 2019, evidence or other material considered in the case, information sheet about how to apply for merits review by the AAT and information about certain provisions of the Migration Act (Exhibit R2);6. an email from National Character Consideration Centre Revocations (NCCC Revocations), Department of Home Affairs (the Department), to Acacia Immigration, Acacia Prison, dated 14 August 2019 regarding non-revocation of cancellation of the Applicant’s visa (Exhibit R3); and 7. an Australia Post registered delivery record (Exhibit R4).RELEVANT LEGAL PRINCIPLES AND CONSIDERATION 7. The Delegate’s decision is a decision not to revoke the cancellation of the Applicant’s visa under s 501(3A) of the Migration Act. Subsection 500(1)(ba) of the Migration Act provides that an application may be made to the Tribunal for review of decisions under s 501CA(4). 8. Subsection 500(6B) of the Migration Act provides that if a decision under s 501 relates to a person in the migration zone, an application to the Tribunal for a review of a decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, in accordance with the s 501G of the Migration Act. 9. In addition to providing that an application to the Tribunal for a review of the decision must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision, section 500(6B) of the Migration Act also has the effect that the time limits for applying for review and provisions relating to the extension of time to seek review under the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) are inapplicable to an application for review of a decision made under s 501 of the Migration Act.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

14. Regulation 2.55(9) provides:(9) If: 1.(a) the Minister purports to give a document to a person by a method specified in this regulation but makes an error in doing so; and 2.(b) the person nonetheless receives the document or a copy of the document; the Minister is taken to have given the document to the person and the person is taken to have received the document: 1.(c) at the time specified by this regulation for that method; or 2.(d) if the person can show that he or she received the document at a later time--at that later time.3. Notification of the Delegate’s decision 15. On 14 August 2019, the Department emailed Acacia prison informing them of the Delegate’s decision and putting them on alert that the notification package was being mailed to the Applicant (Exhibit R3). The text of the email was as follows:On 28 March 2018, a delegate of the Minister for Home Affairs cancelled the visa held by Mr WILKOWSKI, pursuant to s501 (3A) of the Migration Act 1958.Mr WILKOWSKI subsequently requested revocation of the visa cancellation (original decision).The revocation request [sic] been finalised with the decision made not to revoke the original decision, and therefore Mr WILKOWSKI’s visa remains cancelled.Accordingly, Mr WILKOWSKI remains an unlawful non-citizen and following his release from criminal custody the Department will make arrangements for his immigration detention pending removal from Australia.A notification package in relation to the above non-revocation decision has been posted to this prison facility addressed to Jakub Marcin WILKOWSKI. It is important for legal reasons that once received the full notification package is handed to Mr WILKOWSKI as soon as possible. If Mr WILKOWSKI is moved to another prison before the notification can be handed to him, please advise this office immediately.You may know that the notification package is in duplicate, this being a requirement in the event Mr WILKOWSKI wishes to lodge a review application at the Administrative Appeals Tribunal (AAT). At the time the notification package is handed to Mr WILKOWSKI please advise that he has 9 days from the date of receipt* to lodge an AAT review application.*Mr WILKOWSKI will be taken to receive notification when the notification package is handed to him.(Original Emphasis.) 16. The status of this email and the information contained in it with respect to notification of the Applicant is dealt with further below. 17. As noted above, the Applicant was notified of the Delegate’s decision by letter dated 
13 August 2019 (the Notice). That Notice was sent to the Applicant by registered post to the care of postal address for the correctional centre where he is incarcerated. 18. The Notice, issued to the Applicant pursuant to s 501G of the Migration Act, provided the following information (Exhibit A3): Review RightsAs the decision not to revoke the original decision was made by a delegate of the Minister, you are entitled to have that decision reviewed by the Administrative Appeals Tribunal.If you wish to have the decision reviewed, you must lodge your application for review within nine (9) days after the day on which you are taken to be notified of the decision. If you have an authorised recipient who is authorised to receive documents relating to the revocation of the original decision on your behalf, you are taken to be notified when your authorised recipient is taken to be notified of the decision.As you do not have an authorised recipient who can receive documents on your behalf, and as this letter was sent to you by mail from a place in Australia to an address in Australia, you are taken to have received it seven (7) working days after the date of this letter. A working day does not include weekends or public holidays in the Australian state or territory to which the letter was posted.Enclosed is an information sheet about ‘How to Apply for Merits Review by the AAT’, together with two copies of:1.  the decision record (Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and2.  each source document (“Attachment”) considered by the decision maker (other than documents containing non-disclosable information, if any).Enclosed is also some further information about the effect of s500(6A) to s500(6L) of the Migration Act, which the Department is required by law to provide to you.(Original Emphasis.)

Ratio Decidendi

Legal Principle Established

26. The Respondent submitted that there were five key issues arising for consideration (Exhibit R1 and oral submissions):a.(a) Did the Notice comply with the requirements of s 501G? 2. The Respondent submitted that the Notice met all the requirements of 
s 501G in that it:i.(i) set out the decision;ii.(ii) specified the decision was made under s 501CA(4) and stated the effect of the decision;iii.(iii) attached a detailed statements of reasons for the decision;iv.(iv) under the heading “Review Rights” detailed the Applicant’s rights of review, including stating that the application for review must be lodged within nine days after the applicant is taken to be notified of the decision, and noting that as the letter had been sent to him via mail he was taken to have received it seven working days after the date of the letter. Further, the notice also included an information sheet about “How to Apply for a Merits Review by the AAT”; andv.(v) provided the Applicant with two copies of the notice and attachments. 3. The Respondent submitted that the Tribunal has taken a strict view that the requirements of section 501G was complied with, and that in the Applicant’s case the requirements were strictly adhered to. a.(b) Were requirements for the method of delivery of the Notice complied with? i.(i) The Respondent submitted that the Notice was served by registered mail to the prison which was the only address for service available and was dispatched within 3 working days that is on 15 August 2019 as required by the Regulations. a.(c) When is the Applicant taken to have received the Notice? i.(i) The Respondent submitted that the Migration Act and Regulations provided that the date the Applicant is taken to have received the Notice is seven days after the date of the Notice being 22 August 2019. The Respondent submitted that that date is immutable. The Respondent submitted that it is not appropriate to enquire when the Applicant actually received notice of the decision, and the legislative construction of when an applicant receives the notice cannot be rebutted. The erroneous representation made by the Delegate in the email to the prison on 14 August 2019 (Exhibit R3) does not change the fact that the Applicant was notified correctly. No representation of the Applicant can alter the statutory timeframes for receipt of the document. No issue of estoppel arises.a.(d) When was the Applicant required to lodge the application for review? i.(i) The Respondent submitted that the legislation clearly provided that the application for review must be lodged nine days after receipt of the Notice being 2 September 2019, consequently the application was lodged 2 days out of time.a.(e) In circumstances where the application was lodged out of time, can the Tribunal extend the time for lodgement? i.(i) The Respondent submitted that it was established as a matter of law that the Tribunal has no power to extend the time for the making of the application.CONSIDERATIONWere the requirements for s 501G met?