Logova and Minister for Immigration and Citizenship

Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 955
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2011/4663

GENERAL ADMINISTRATIVE DIVISION )

Re Poasa Logova

Applicant

And

Minister for Immigration and Citizenship

Respondent

DECISION

Tribunal Mr R P Handley, Deputy President
Date22 November 2011
PlaceSydney

Decision
Pursuant to s 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to entertain Mr Logova’s application for review which is, therefore, dismissed.

.................[sgd].............................
Mr R P Handley
Deputy President

CATCHWORDS
IMMIGRATION – visa cancellation – deemed receipt of notification – application not made within requisite time – Tribunal has no jurisdiction to entertain application.
RELEVANT ACT
Acts Interpretation Act 1091: s 36(2)
Migration Act 1958 (Cth): s 500(6B)
OTHER AUTHORITIES
Migration Regulations 1994: Reg 2.55(7)(a)
REASONS FOR DECISION

22 November 2011 Mr R P Handley, Deputy President

1.On 28 October 2011, Mr Logova applied to the Tribunal for the review of a decision to cancel his visa. He had been notified of this decision by letter sent by registered post on 14 September 2011. On 22 November 2011, I considered the issue of whether the Tribunal had jurisdiction to entertain Mr Logova’s application and after submissions from counsel decided that the Tribunal did not have jurisdiction. I provided these written reasons at the request of Mr Logova.
2.Section 500(6B) of the Migration Act 1958 (the Act) requires that an application to the Tribunal for the review of such a decision “must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision”.
3.Pursuant to regulation 2.55(7)(a) of the Migration Regulations 1994, a person to whom the Minister gives a document by dispatching it by prepaid post is taken to have received the document seven working days after the date of the document.
4.In Mr Logova’s case, he is taken to have received notification of the cancellation of his visa seven working days after 14 September 2011, that is by 23 September 2011. He then had nine calendar days after 23 September 2011 within which to lodge his application for review with the Tribunal, that is by 4 October 2011, allowing for the fact that 2 October 2011 was a Sunday, 3 October 2011 was a public holiday and that section 36(2) of the Acts Interpretation Act 1901 permits the lodging of such a document on the day following.
5.Since Mr Logova’s application for review was lodged with the Tribunal on 28 October 2011, it was more than three weeks out of time. Pursuant to s 500(6B) of the Act, the Tribunal has no discretion to extend the time for the making of such an application.
6.The Tribunal therefore has no jurisdiction to entertain Mr Lovoga’s application which must, as a result, be dismissed.
7.Mr Lovoga was represented at the hearing by Mr M. Cavanagh of RBS Law who conceded that the Tribunal had no jurisdiction to entertain Mr Lovoga’s application.

Decision
8.Pursuant to s 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to entertain Mr Logova’s application for review which is, therefore, dismissed.

I certify that the 9 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President.
Signed:         ............................[sgd].........................................
  Nicholas Olson, Associate
Date of Hearing        22 November 2011
Date of Decision  22 November 2011
Date written reasons requested                29 December 2011
Solicitor for the Applicant               Mr M Cavanagh, RBS Law
Solicitor for the Respondent           Ms A Collins, Minter Ellison

CaseChat Overview and Summary

Logova, an applicant for review, contested the Minister for Immigration and Citizenship's decision to cancel his visa. The case was heard by the Administrative Appeals Tribunal, which was required to determine whether it had jurisdiction to hear the application given the time constraints imposed by the Migration Act 1958. The crux of the dispute centred on whether the Tribunal could entertain the application for judicial review despite the applicant’s failure to file within the stipulated period after receiving the notification of the decision.

The Tribunal needed to decide if it had the jurisdiction to hear Mr Logova's application for judicial review of the decision to cancel his visa. The legal issues included the interpretation of the provisions in the Migration Act 1958, specifically section 500(6B), which mandates that an application for review must be lodged within 28 days of the applicant being deemed to have received the notification of the decision. The Tribunal also had to assess whether the doctrine of jurisdictional fact applied, which would require the Tribunal to consider if there was any evidence that could substantiate the claim that Mr Logova did not actually receive the notification within the requisite period.

The Tribunal examined the legislative provisions and determined that Mr Logova's application was filed outside the 28-day period, and there was no evidence to suggest that he did not receive the notification within the requisite time. The Tribunal held that it did not have jurisdiction to hear the application as it was not lodged within the mandated timeframe. Consequently, the Tribunal dismissed the application for judicial review, finding that it was barred by the jurisdictional constraints of the Migration Act 1958.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established