Wilkowski and Minister for Home Affairs (Migration)

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.