Re Gonzalez and Minister for Immigration and Citizenship

[2011] AATA 812

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 812

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  2011/3784

GENERAL ADMINISTRATIVE DIVISION		)
Re		DAVID GONZALES

Applicant

And MINISTER FOR IMMIGRATION AND CITIZENSHIP

Respondent

DECISION

Tribunal  Senior Member Bernard J McCabe

Date 28 September 2011

Place Brisbane

Decision  The Tribunal does not have jurisdiction to hear the application.

..............................................

Senior Member

CATCHWORDS

CITIZENSHIP AND IMMIGRATION — immigration — application received late — possible delay at correctional centre — no jurisdiction

Migration Act 1953, ss 500(6B), 501, 501G(3)

Migration Regulations 1994, r 2.55(7)

REASONS FOR DECISION

28 September 2011  Senior Member Bernard J McCabe        

1.David Gonzales is currently in immigration detention because the Minister decided to cancel his visa pursuant to s 501 of the Migration Act 1953. The cancellation decision is recorded in a letter to the applicant dated 18 August 2011. The letter was sent on or about that date to Mr Gonzales at the Brisbane Correctional Centre. He was an inmate there at the time. Mr Gonzales received the Notice of Cancellation and decided to appeal to the Tribunal. He filled out an application for review in the Tribunal which is dated 31 August 2011. He says he also completed a form on the same day requesting that the prison authorities release money from the prison trust account for the filing fee. He says those documents were handed to one of the officers in his unit at the Brisbane Correctional Centre for processing and despatch on 1 September. The documents did not reach the Tribunal until 8 September.

2.That is a problem, because the legislation imposes strict time limits on applications to the Tribunal. The Act says a person may be notified of a decision in a prescribed way: s 501G(3). Where the Minister elects to inform a visa-holder of a decision by prepaid mail, Regulation 2.55(7) of the Migration Regulations 1994 says the letter is deemed to have been received seven days after the date of the document. In this case, Mr Gonzales is deemed to have received the Notice of Cancellation by 29 August. Section 500(6B) says the person has nine days after that date (ie, the date on which he received – or was deemed to receive – notice of the decision) to lodge an appeal with the Tribunal. There is no discretion to extend the time within which the appeal must be filed. It follows that Mr Gonzales’s appeal must have been received by the Tribunal by close of business on 7 September. By the time his application was received by the Tribunal it was too late.

3.

I am obliged to accept the Tribunal does not have jurisdiction to hear

Mr Gonzales’s appeal. That is a hard result for Mr Gonzales: if he completed his appeal documents on 31 August and handed them over for despatch as he claims, he did all that he could to comply with the rigid provisions of the Act. He was necessarily dependent on the prison authorities to process and mail his documents quickly.

4.It should not be difficult to confirm Mr Gonzales’s account. The form requesting the issue of a cheque will presumably be dated. That date can be compared with the date of the cheque. It would be a matter of serious concern if there has been an unreasonable delay in the handling of the cheque and the application for review within the Brisbane Correctional Centre. While I can do nothing more to retrieve the position of Mr Gonzales, the Tribunal and its users would at least have some reassurance that problems were unlikely to occur in future cases.

5.I will ask the registrar of the Tribunal to write to the respondent and the Director-General of the Queensland Department of Corrections to ask that they investigate the reasons for the delay.

Conclusion

6.Agencies that have the care and custody of individuals who are subject to visa cancellation proceedings should be aware of the very strict time limits that apply to applications for review. An inmate can only do so much to help himself. He is surely entitled to assume his gaolers will deal with his application with reasonable speed.

7.Sadly for Mr Gonzales, the reasons for the delay in this case will change nothing. All that matters is that there has been a delay. The Tribunal does not have jurisdiction and cannot review the decision to cancel his visa.

8.

It is open to the Minister’s delegate to revoke his decision to cancel the visa, of course. He could then make a fresh decision which can be notified to

Mr Gonzales. If the investigation I have requested reveals Mr Gonzales has been the victim of some shortcoming in the process by which his application for review was handled, revoking and re-making the decision would ensure Mr Gonzales was not deprived of his procedural rights by what may turn out to be an unfortunate accident that is no fault of the applicant. But I cannot insist on that course; it is a matter for the respondent.

I certify that the Senior Member Bernard J McCabe preceding paragraphs are a true copy of the reasons for the decision herein of 8.

Signed: .....................................................................................
  Associate

Date of Hearing   26 September 2011
Date of Decision   28 September 2011
Applicant   Self-represented
Solicitor for the Respondent      Mr S Moloney, Clayton Utz