Mahia and Minister for Immigration and Citizenship [2011] AATA 789 (24 October 2011)

Last Updated: 15 November 2011

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2011/4536
GENERAL ADMINISTRATIVE DIVISION )

Re: Thomas Mahia
Applicant

And: Minister for Immigration and Citizenship
Respondent

ORDER AND REASONS FOR ORDER [2011] 789

Tribunal: Deputy President S D Hotop

Date: 24 October 2011

Place: Perth


Pursuant to section 500 (6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction to determine the applicant’s application for review lodged on 20 October 2011.

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

S D Hotop

Deputy President

CATCHWORDS

PRACTICE AND PROCEDURE – jurisdiction – applicant’s visa cancelled – applicant notified of cancellation decision on 7 October 2011 – applicant lodged application for review with Tribunal on 20 October 2011 – statutory provision that application for review must be lodged with Tribunal within 9 days after proper notification of decision – Tribunal’s power to extend time for making application for review excluded by statutory provision – applicant properly notified of decision on 7 October 2011 – applicant’s application for review lodged with Tribunal after expiration of statutory 9-day period – Tribunal does not have jurisdiction in respect of application for review

Migration Act 1958 (Cth), s 500(6B) and s 501G(1)

Migration Regulations 1994 (Cth), reg 2.55

Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494

REASONS FOR ORDER

8 November 2011

Deputy President S D Hotop

INTRODUCTION

1. On 24 October 2011 I made an order in this matter in the following terms:

“ Pursuant to section 500(6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction to determine the applicant’s application for review lodged on 20 October 2011.”

On that occasion I stated orally my reasons for making that order.

2. On 3 November 2011 the Tribunal received a written request from the office of the Australian Government Solicitor, representing the Minister for Immigration and Citizenship (“the respondent”), for a statement in writing of the reasons of the Tribunal for making the abovementioned order.
3. A statement of my reasons for making that order follows.

RELEVANT FACTUAL BACKGROUND

4. The following relevant background facts appear from documents lodged with the Tribunal by Thomas Mahia (“the applicant”) and are not in dispute.
5. On 27 September 2011 a delegate of the respondent cancelled the applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under s 501(2) of the Migration Act 1958 (Cth) (“the Act”).
6. Written notice of the cancellation of the visa, dated 28 September 2011, was given to the applicant by an officer of the Department of Immigration and Citizenship (“the Department”) by dispatching it by registered post to Acacia Prison, Wooroloo, Western Australia where he was then incarcerated.
7. The applicant, by letter dated 17 October 2011 (which was addressed to the Department but at the street address of the Tribunal’s Western Australia Registry) sought review of the delegate’s decision of 27 September 2011. The letter was received by the Tribunal’s Western Australia Registry on 20 October 2011.
8. On 21 October 2011 the applicant lodged with the Tribunal a completed form of Application for Review of Decision, dated 20 October 2011, in which he indicated that he had received notice of the abovementioned decision on 4 October 2011.

RELEVANT LEGISLATION

9. Section 500(1) of the Act provides that applications may be made to the Tribunal for review of, inter alia, decisions of a delegate of the Minister under s 501. Subsection (6B) of s 500 provides:

“ (6B) 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.”

10. Section 501G of the Act relevantly provides:

“ 501(G) Refusal or cancellation of visa – notification of decision
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than nondisclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone – sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
...
(3) A notice under subsection (1) must be given in the prescribed manner.
...”

11. Regulation 2.55 of the Migration Regulations 1994 (Cth) (“the Regulations”) relevantly provides:

“ 2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
...
(b) the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and
...
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person's last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) email; or
(iii) other electronic means;
to the last fax number, email address or other electronic address known to the Minister.
...
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(b):
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
...
(7) If the Minister gives a document to a person by dispatching it by prepaid post..., the person is taken to have received the document:
(a) if the document was dispatched from a place in Australia to an address in Australia ─ 7 working days (in the place of that address) after the date of the document; or
...”

REASONS FOR DETERMINING THAT THE TRIBUNAL DOES NOT HAVE JURISDICTION IN THIS MATTER

12. There is no dispute that the applicant is, and was at all material times, in “the migration zone”, within the meaning of the Act, and, accordingly, subs (6B) of s 500 of the Act is applicable in this case.
13. Pursuant to subs (6B) of s 500 of the Act an application to the Tribunal for review of the relevant 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)”. Subsection (6B) expressly excludes the application of para (1)(d) and subss (7), (8), (9) and (10) of s 29 of the Administrative Appeals Tribunal Act 1975 (Cth), as a result of which the Tribunal does not have the power to grant an extension of the 9-day time limit prescribed by subs (6B).
14. Pursuant to subs (6B) of s 500 of the Act, however, the prescribed 9-day time limit only applies and commences to run if the person whose visa was cancelled “was notified of the decision in accordance with subsection 501G(1)”. Paragraphs (c)–(f) of s 501G(1) of the Act prescribe the various requirements with which a written notice given under that subsection must comply. I have considered the Notice of Visa Cancellation, dated 28 September 2011, and the documents enclosed therewith which were given to the applicant by the Department and I am satisfied that that notice fully complies with s 501G(1) of the Act and is a valid notice. That notice was, furthermore, given to the applicant in the manner prescribed by reg 2.55(3)(c) of the Regulations, and, pursuant to reg 2.55(7)(a), the applicant is taken to have received that notice 7 working days after the date of that notice, namely, on 7 October 2011.
15. It follows, pursuant to subs (6B) of s s500 of the Act, that the applicant was required to lodge his application for review with the Tribunal within 9 days after 7 October 2011. Because the 9^th day – namely, 16 October 2011 – fell on a Sunday, the prescribed period for lodging the application for review did not expire until Monday, 17 October 2011 (see s 36(2) of the Acts Interpretation Act 1901 (Cth)). In order to comply with subs (6B) of s 500 of the Act, therefore, the applicant’s application for review must have been “lodged with the Tribunal” no later than 17 October 2011.
16. The Tribunal is prepared to treat the applicant’s letter dated 17 October 2011 (referred to in paragraph 7 above) as his application for review of the delegate’s decision of 27 September 2011. As previously mentioned, however, that letter was not received by the Tribunal, and the application for review was thus not “lodged with the Tribunal” within the meaning of subs (6B) of s 500 of the Act, until 20 October 2011 – that is, 3 days after the expiration of the period prescribed by subs (6B). As also previously mentioned, pursuant to subs (6B) the Tribunal does not have the power to grant an extension of the period prescribed by subs (6B).
17. It follows that, pursuant to subs (6B) of s 500 of the Act, the Tribunal does not have jurisdiction in respect of the applicant’s application for review lodged on 20 October 2011: see Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494 at 496.

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S D Hotop

Deputy President