Timothy Vogel and Minister for Immigration and Citizenship

[2012] AATA 258

[2012] AATA 258

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2012/1383
Re	Timothy Vogel
APPLICANT
And	Minister for Immigration and Citizenship
RESPONDENT

DECISION

Tribunal	Deputy President PE Hack SC
Date	3 May 2012
Place	Brisbane

The Tribunal has no jurisdiction to hear and determine the application.

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Deputy President PE Hack SC

Catchwords

IMMIGRATION & CITIZENSHIP – visa cancellation decision - time for making application – application lodged outside prescribed time – no jurisdiction

Legislation

Migration Act 1958 (Cth) s 500(6B)

REASONS FOR DECISION

Deputy President PE Hack SC

3 May 2012

1. On 27 March 2012 the applicant, Mr Timothy Vogel, then a resident of the Arthur Gorrie Correctional Centre, was handed an undated letter from the Department of Immigration and Citizenship notifying him that a delegate of the respondent, the Minister for Immigration and Citizenship, had decided to cancel Mr Vogel’s TY 444 Special Category visa pursuant to the power to do so conferred by s 501 of the Migration Act 1958 (Cth).

2. On 10 April 2012 Mr Vogel’s application (dated 2 April 2012) to review that decision was received by the Tribunal.

3. The Minister submits that the Tribunal has no jurisdiction to hear and determine Mr Vogel’s application because it was not lodged within the prescribed time. I regret to say that the Minister’s point is good and that no merits review is available to Mr Vogel in circumstances where he appears to have done all within his power, as a person in custody, to lodge the application within time.

4. The result is unfortunate but it is the product of the requirement of s 500(6B) of the Act that an application, by a person within the migration zone, which Mr Vogel undoubtedly is, to review a decision under s 501 “must be lodged with the Tribunal within 9 days after the person was notified of the decision in accordance with subsection 501G(1)” of the Act and that the Tribunal’s ordinary power to extend time for the making of an application (s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth)) “does not apply to the application”.

5. Here, Mr Vogel has noted in his application that the notice was received by him on 27 March 2012. The Minister has produced an acknowledgment of service on that date signed by Mr Vogel. Nine days after 27 March 2012 is 5 April 2012, a date that had passed prior to the lodgement of the application on 10 April 2012. According to Mr Vogel he prepared his application and handed it to correctional services’ officers at lunchtime on 2 April 2012 for posting to the Tribunal. He points out that, as a prisoner in custody there is a limit to what he is able to do and that once he puts the completed application in the hands of the prison authorities he has no power to control the speed at which those authorities act. Here, it would appear, that either they have not acted promptly or that the mail delivery was extraordinarily slow because the application was not received until 10 April 2012.

6. It is regrettable that Mr Vogel has been deprived of an entitlement to have the decision reviewed on its merits however I have no discretion to extend the time or to deal with an application made outside the statutory time limit.

7. As it seems to me the result produces a manifest injustice (and not for the first time)  is the consequence of the very much abbreviated time limit coupled with the removal of the Tribunal’s ordinary power to extend time. The legislation simply does not cater for the reality that persons in Mr Vogel’s position will almost invariably be in custody and thus have considerable restrictions placed upon their capacity to lodge applications and accordingly must depend upon the efficiency of others over whom they have no control. This situation has occurred before in this Registry[1] and, no doubt, in other Registries.  It is an unsatisfactory situation which I consider ought be brought to the attention of the Commonwealth Ombudsman. The right to make an application for merits review ought not be rendered illusory. I shall ask the District Registrar to forward a copy of these reasons to that official. 

   [1] See Gonzales and Minister for Immigration and Citizenship [2011] AATA 812.

I certify that the preceding 7 (seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President PE Hack SC.

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Associate

Dated  3 May 2012

Date(s) of hearing	3 May 2012
Applicant	In person
Solicitors for the Respondent	Sparke Helmore