William ANAKI and Minister for Immigration and Citizenship
[2012] AATA 116
•8 February 2012
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2012/0224
GENERAL ADMINISTRATIVE DIVISION )Re: William Anaki
Applicant
And: Minister for Immigration and Citizenship
RespondentDIRECTION
TRIBUNAL: Senior Member Bell
DATE: 1 March 2012
PLACE: Sydney
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the reasons for the decision in this application as follows:
- The date in paragraph 2 should read 2 December 2011, not 2 December 2012.
- The date in paragraph 2 should read 12 December 2011, not 12 December 2012.
- The date in paragraph 2 should read 13 December 2011, not 13 December 2012.
- The date in paragraph 7 should read 12 December 2011, not 12 December 2012.
- The date in paragraph 7 should read 21 December 2011, not 21 December 2012.
- The date in paragraph 7 should read 30 December 2011, not 30 December 2012.
- The date in paragraph 11 should read 29 December 2011, not 29 December 2012.
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Ms N Bell, Senior Member[2012] AATA 116
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/0224
Re
William ANAKI
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Date 8 February 2012 Date of written reasons 27 February 2012 Place Sydney The Tribunal has no jurisdiction to hear and determine Mr Anaki’s application for review.
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Ms N Bell, Senior Member
CATCHWORDS
IMMIGRATION – JURISDICTION – visa cancellation – character grounds – notification- nine-day time limit – applicant in prison – application not made within requisite time – procedural fairness – jurisdiction to review decision – Tribunal has no jurisdiction to hear and determine application for review
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), ss 29(1)(d), 29(7), 29(8), 29(9), 29(10)
Migration Act 1958 (Cth), ss 500(2), 500(6B), 501G
Migration Regulations 1994 (Cth), reg 2.55(7)(a)Click here to enter text.
REASONS FOR DECISION
Ms N Bell, Senior Member
27 February 2012
Mr William Anaki is 35 years old and has lived in Australia since he was 8 years old. He was born in New Zealand and arrived in Australia sponsored by his mother. Since his arrival in December 1985, he has not left Australia. He is currently an inmate at a correctional centre in Junee.
On 2 December 2011, a delegate of the Minister made a decision to cancel Mr Anaki’s Class TY Subclass 444, Special category (Temporary) visa on the grounds that he does not pass the character test in the Migration Act 1958 (Cth). He was notified of the decision by letter dated 12 December 2011, sent by registered post the following day on 13 December 2011.
It was not until 19 January 2012 that Mr Anaki applied to the Tribunal for the review of the decision to cancel his visa. This date was well after the time allowed by the Act for lodgement of an application for review.
A directions hearing by telephone was held on 8 February 2012 at which Mr Anaki appeared unrepresented. The Minister was represented by counsel from the Department of Immigration and Citizenship’s in-house litigation section. The Minister submitted that the Tribunal had no jurisdiction to entertain Mr Anaki’s application for review of the decision to cancel his visa. At the hearing, I decided that the Tribunal had no jurisdiction to review the decision. These are my reasons.
DOES THE TRIBUNAL HAVE JURISDICTION?
The Migration Act 1958 (Cth) provides for a very tight timetable for the exercise of rights to merit review of decisions to cancel visas. Section 500(6B) of the Act requires that an application for the review of a decision must be lodged with the Tribunal within nine days of the person being notified of the decision.
Regulation 2.55(7)(a) of the Migration Regulations 1994, provides that a document from the Minister dispatched by prepaid post is taken to be received within seven working days after the date of the document.
For Mr Anaki, the combined effect of section 500(6B) and regulation 2.55(7)(a) (attached to these reasons) is that the notification of the decision to cancel his visa, dated 12 December 2011, is taken to have been received on 21 December 2011, and that within nine calendar days of that date, being 30 December 2011, Mr Anaki had until 30 December 2011 to lodge an application for the review of the decision with the Tribunal.
Section 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) provides for a discretion to extend the time for applying to the Tribunal for review of a decision. Section 500(6B) of the Migration Act specifically excludes the operation of that provision.
There is no evidence that the Department failed to satisfy the requirements of notice under the Act and the Regulations. The notification was sent to the address of the correctional centre to which Mr Anaki was confined. The notification also had annexed to it, among other things, information on how Mr Anaki could make an application for review of the decision to the Tribunal and included contact details for the Tribunal’s various registries.
Mr Anaki did not lodge an application for review within the required nine days of the deemed date of receipt of the notification of the decision to cancel his visa. It follows that he did not make a valid application for review. In the absence of a valid application for review, the Tribunal has no jurisdiction.
ADDITIONAL COMMENTS
The tight timetable to which Mr Anaki was subject began to run soon before the Christmas period, with the deemed date of receipt of the notification of the decision just four days before Christmas Day. Mr Anaki sent an undated handwritten letter to Mr Collins, the author of the notification of decision, saying that he was unsure of his options and requesting assistance. Mr Anaki’s letter was stamped as received by the Department on 29 December 2011, one day before the last day on which Mr Anaki could apply for review of the decision to cancel his visa.
In an affidavit dated 7 February 2012, Mr Collins stated that on 4 January, six days after the date received stamp on Mr Anaki’s letter, he spoke to Mr Anaki by telephone. In a file note of the telephone conversation annexed to his affidavit, Mr Collins noted that he explained to Mr Anaki that he could appeal to the Tribunal but that he may already be out of time. He gave Mr Anaki the national number for the Tribunal. According to Mr Collins’ file note, Mr Anaki responded that he was confused when he first received the notification and that had he been aware of the Tribunal contact details he would have written directly to the Tribunal rather than to Mr Collins.
Mr Anaki contacted the Tribunal on 4 January 2012 and an application form was faxed to him on that day. However, Mr Anaki said he did not receive the form until 9 January.
In anticipation of the faxed application form, Mr Anaki wrote a letter to the Tribunal dated 6 January 2012, explaining his situation and his frustration since receiving the notification of the decision. Mr Anaki signed the application form on 9 January 2012. The application was received by the Tribunal on 19 January 2012. It was, by then, 21 days out of time.
At the hearing Mr Anaki said that the time frame to do all that he was supposed to do, taking into account Christmas Day, Boxing Day, the public holidays and the weekends was not fair in his circumstances. He stated:
“I had to read all this stuff and then write back as best I could … I didn’t have a fair chance and I tried my best. … I wrote to Russell [Collins] and that letter got sent within that timeframe, but I know it wasn’t to you guys, but I don’t want to put up – I didn’t have no legal help. I had no one here. There’s no welfare at this jail[sic]…I can’t go to a Chaplain and, like, everything takes time, even to send the papers to the [T]ribunal. … And then I had to pay for a stamp and then that had to go through administration in the jail [sic], and that all takes time. I can’t just put it in the mail, I can’t just go do things myself…”
(Tr. p. 3-4)
In relation to the letter Mr Anaki wrote to Mr Collins, Mr Anaki said:
“I said I don’t know what to do…the forms are, like, for a legal person… I didn’t know what was going on. I tried to ring Legal Aid and they just had – they had no one there that could really help me, and I rang them on around Christmas time, they said no one is back until 9 January…”
(Tr. p.5)
When I asked Mr Anaki about his literacy, he said:
“Yes, I can read all right, but not that good…reading all the stuff I didn’t really understand it…I only went – I went to year 9, year 8.”
(Tr. p.5)
Mr Anaki suffered the combined effects of his general lack of immediate access to advice and information; his particular lack of access to advice and information over the Christmas period; the delay of six days by the Department in responding to his request for assistance – a request that was made within the period for lodgement of an application for review; and the general difficulty encountered by prisoners in effecting ordinary actions such as posting letters, sending faxes, or receiving information as soon as it reaches the correctional facility to which they are confined. This combination of factors meant that Mr Anaki was, or considered that he was, unable to exercise his right to review of the decision to cancel his visa. There was no fault in the notification of the decision; it was in accordance with the requirements of the Act and the Regulations. However, given the intervention of the Christmas and New Year period, the already very restrictive timetable for the exercise of his right to review was effectively shortened. He had no support or assistance to enable him to properly understand the correct process to lodge an application with the Tribunal. Legal advice was inaccessible because of the holiday period. Presumably, the holiday season was the reason why Mr Anaki’s request for assistance from the Department went unanswered for six days after it was received.
The effect of the decision to cancel Mr Anaki’s visa will terminate the permission granted to him to be present in Australia. There can be no doubt about the gravity of the decision and its consequences for him.
All of this suggests that good, fair and humane administration would be better served by avoiding the commencement of a highly restrictive timetable for the exercise of rights of review at a time when, for much of the duration of the timetable, the majority of sources of advice and information, including, it appears, the Department itself, will be unavailable. To serve a notification of such gravity at such a time makes an already demanding timetable an extraordinarily and unfairly demanding requirement. To make this requirement, during this period, of an inmate at a correctional facility, with all of the limitations faced by inmates in responding to legal notifications, gives rise to severe disadvantage.
DECISION
The Tribunal has no jurisdiction to hear and determine Mr Anaki’s application for review.
22. I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell.
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Associate
Dated 27 February 2012
Date of hearing 8 February 2012
Date of written reasons
Applicant
27 February 2012
In person
Solicitors for the Respondent Cate Darcy
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