Federal Court of Australia

Virapornsawun v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1699

ORDERS

THE COURT ORDERS THAT:

1.    The originating application filed on 28 September 2020 be dismissed.

2.    The applicant pay the first respondent’s costs as agreed or taxed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JAGOT J:

1    These reasons for judgment concern an application for judicial review of a decision of the second respondent (the Tribunal) which dismissed the applicant’s application for review as the application was brought outside the time prescribed by s 500(6B) of the Migration Act 1958 (Cth) (the Migration Act).

2    For the reasons that follow, the applicant’s application cannot succeed and the application must be dismissed.

Background

3    On 2 April 2019, the applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act. On 4 June 2020, the first respondent (the Minister) decided not to revoke the visa cancellation decision pursuant to s 501CA(4) of the Migration Act. As noted in the Minister’s written submissions, a notification letter dated 4 June 2020 was sent to the applicant via registered post. The notification letter accompanied the Tribunal’s decision. The notification letter stated:

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:

•    The decision record (Statement of Reasons) that sets out the reasons for the decision (other than non-disclosable information, if any); and

•    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).

4    Furthermore, the applicant acknowledged at paras [7]–[8] of his affidavit dated 25 September 2020 that:

7.    On the 4th of June, 2020, whilst incarcerated at Bathurst Correctional Centre, I was notified of the decision by the department not to revoke the cancellation of my visa.

8.    The paperwork provided stated that I had 9 days to lodge an appeal with the Administrative Appeals Tribunal.

5    On 14 August 2020, the applicant applied to the Tribunal for review of the Minister’s decision. On 24 August 2020, the Tribunal dismissed the applicant’s application pursuant to s 42A(4) of the Administrative Appeal Tribunal Act 1975 (Cth) (the AAT Act) on the basis that the application was brought outside the time prescribed by s 500(6B) of the Migration Act (the Tribunal’s decision).

6    On 28 September 2020, the applicant applied to this Court for judicial review of the Tribunal’s decision. The applicant’s originating application lists one ground which is expressed in the following terms:

The second respondent did not allow me an extension of time for my appeal to be heard, and ignored the issues as to why I did not appeal, which were because of the difficulties brought about by the COVID-19 pandemic.

Legislative context

7    An application may be made to the Tribunal for review of a decision of a delegate of the Minister under s 501CA(4) pursuant to s 500(1)(ba) of the Migration Act. If a decision is made pursuant to s 510CA(4), s 500(6B) applies to such an application. Section 500(6B) of the Migration Act provides as follows:

If a decision under section 501 of this Act, or a decision under subsection 501CA(4) of this Act not to revoke a decision to cancel a visa, 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.

8    Section 29 of the AAT Act relevantly provides:

…

Tribunal may extend time for making application

(7)    The Tribunal may, upon application in writing by a person, extend the time for the making by that person of an application to the Tribunal for a review of a decision (including a decision made before the commencement of this section) if the Tribunal is satisfied that it is reasonable in all the circumstances to do so.

(8)    The time for making an application to the Tribunal for a review of a decision may be extended under subsection (7) although that time has expired.

(9)    Before the Tribunal determines an application for an extension of time, the Tribunal or an officer of the Tribunal may:

(a)    give notice of the application to any persons the Tribunal or officer considers to be affected by the application; or

   (b)    require the applicant to give notice to those persons.

(10)    If a person to whom a notice is given under subsection (9), within the prescribed time after the notice is received by him or her, gives notice to the Tribunal stating that he or she wishes to oppose the application, the Tribunal shall not determine the application except after a hearing at which the applicant and any person who so gave notice to the Tribunal are given a reasonable opportunity of presenting their respective cases.

Discussion

9    The applicant was within the migration zone, being Australia, on 4 June 2020 when the Minister decided not to revoke the applicant’s visa cancellation decision pursuant to s 501CA(4) of the Migration Act. Accordingly, s 500(6B) applied to the applicant’s application that was the subject of the Tribunal’s decision.

10    Section 501G(1) stipulates the requirements the Minister must satisfy when notifying the applicant of the Tribunal’s decision. The applicant does not suggest any non-compliance with s 501G(1).

11    The latest date that the applicant could be taken to have been notified of the decision was 15 June 2020: regs 2.55(3)(c) and 2.55(7) of the Migration Regulations 1994 (Cth). Accordingly, pursuant to s 500(6B) the applicant was required to file any application for review by no later than 24 June 2020. In his affidavit the applicant stated that the 9 day time period was insufficient for him to file his application for review. The applicant also stated that his inability to file the application was exacerbated by the outbreak of the Coronavirus pandemic and the subsequent restrictions imposed. He said that it was difficult for him to get assistance in filling the application and could not arrange for a lawyer or family member to do so on his behalf. All of this may be accepted.

12    As this Court has held, however, the period of time in which an application for review must be filed pursuant to s 500(6B) is absolute. The Tribunal does not have power to extend this time: see Beni v Minister for Immigration and Border Protection [2018] FCAFC 228; (2018) 267 FCR 15 at [79]–[80]; Brown v Minister for Immigration and Border Protection [2018] FCA 1643 at [60]–[63]. Section 500(6B) expressly excludes the application of the Tribunal’s general power to extend time pursuant to subss 29(7), (8), (9) and (10) of the AAT Act. In the present case, the applicant did not file an application for review until 14 August 2020, being 51 days after the prescribed time period had ended. Irrespective of the applicant’s claimed insufficiency of time or exacerbating circumstances, as I have already stated, the Tribunal did not have jurisdiction to determine his application for review. The application was filed beyond the time period as mandated by s 500(6B).

13    I accept the Minister’s submission that the applicant has not identified an error in the Tribunal’s decision. The Tribunal was bound to enforce the statutorily mandated time period. This time period is absolute and cannot be extended. There is no error in the Tribunal’s decision. In these circumstances the application must be dismissed with costs, harsh as that result may seem.

Associate:

Dated:    27 November 2020