CVRZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The originating application filed 11 September 2020 is dismissed
2. The applicant is to pay the first respondent's costs fixed in the sum of $ 7,241. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REEVES J: 1 The applicant's (CVRZ) originating application in this matter raises two grounds of review concerning the operation of s 500(6L) of the Migration Act 1958 (Cth) (the Act). Including their supporting particulars, those grounds are: 1. The [Administrative Appeals Tribunal (Tribunal)] made a jurisdictional error by purporting to make a decision on [CVRZ's] application outside the time limit set by s.500(6L) of the Migration Act 1958 (Cth) (Act). Particulars a. On 22 May 2020 a delegate of the [Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs] decided to refuse to revoke the cancellation of [CVRZ's] visa. b. On 28 May 2020, [CVRZ] applied to the Tribunal for review of the delegate's decision. c. By s.500(6L) of the Act, the Tribunal was required to make a decision on [CVRZ's] application on or before 14 August 2020. d. On 17 August 2020, the Tribunal purported to make a decision on [CVRZ's] application. 2. The Tribunal made a jurisdictional error by misunderstanding s.500(6L) of the Act and misapprehending the extent of its jurisdiction. Particulars a. Section 500(6L) of the Act required the Tribunal to make a decision within 84 days after the day on which the delegate's decision was made. b. At [13] of its reasons, the Tribunal finds explicitly or by implication that the word 'days' as it appears in s.500(6L) of the Act means 'business days'. c. The word 'days' as it appears in s.500(6L) of the Act does not mean 'business days'. d. The Tribunal's misunderstanding caused it to misapprehend the extent of its jurisdiction in that it purported to make a decision outside the time limit set by s.500(6L) of the Act. (Emphasis in original) 2 In his written submissions, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the second respondent, accepted that the 84 days time limit set by s 500(6L) operated in the circumstances of this case. However, he claimed that the Tribunal complied with that time limit. Section 500(6L) provides: If: (a) an application is made to the Tribunal for a review of 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; and (b) the decision relates to a person in the migration zone; and (c) the Tribunal has not made a decision under section 42A, 42B, 42C or 43 of the Administrative Appeals Tribunal Act 1975 in relation to the decision under review within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1); the Tribunal is taken, at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975 to affirm the decision under review. 3 The fundamental defect in CVRZ's grounds of review above stems from the first particular to the second ground of review: "a. Section 500(6L) of the Act required the Tribunal to make a decision within 84 days after the day on which the delegate's decision was made". In fact, as can be seen from s 500(6L)(c) above, the time limit set by that subsection commences to run from "the day on which the person was notified of the decision under review in accordance with subsection 501G(1)". 4 Section 501G(1)(ba) relevantly provides that, if a decision is made under s 501CA to "not revoke a decision to cancel a visa that has been granted to a person", the Minister must give the person a written notice of the decision. That section proceeds to prescribe the content of such a notification and provides that it "must be given in the prescribed manner" (s 501G(3)). That manner is prescribed by regs 2.55 and 5.02 of the Migration Regulations 1994 (Cth). In this matter, since CVRZ was in immigration detention at the relevant time, reg 5.02 required the notification to be served on him personally. Further, where personal service is required, reg 2.55(5) provided that he was taken to have received the notification when it was handed to him. 5 The Court Book in this matter contains a receipt signed by CVRZ and dated 25 May 2020 acknowledging that he received notification of the decision in his matter on that date. It follows that 25 May 2020 was the date from which the time limit in s 500(6L) commenced. The period of 84 days after that date expired on 17 August 2020. Since the Administrative Appeals Tribunal (the Tribunal) delivered its decision on 17 August, it follows that the Minister is then correct in his claim that it complied with the time limit in s 500(6L). 6 For these reasons, there is no merit in CVRZ's first ground of review. 7 As for CVRZ's second ground of review, on a fair reading, I do not consider the Tribunal's observations at [13] of its reasons reflected a misunderstanding of the requirements of s 500(6L). At that paragraph, the Tribunal said: It should be noted that 13 August 2020 was the final business day before the occurrence of the 84th day relevant to this matter, which was the immediately following Monday, 17 August 2020. On Monday, 17 August 2020, the Tribunal published its decision in this application pursuant to s 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth). In so doing, the Tribunal also met the requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked "Annexure B" is a true and correct copy of this Decision. (Emphasis in original) 8 It can be seen from this passage that the Tribunal was not saying that 13 August marked the expiry of the 84 day period, but rather that that date was the last business day before that event occurred. While, in the circumstances, the 13 August date and the number of business days that had elapsed were not relevant considerations for the purposes of s 500(6L), I do not consider those comments reflected a misunderstanding by the Tribunal of the relevant date because it went on to state that it had complied with that section by publishing its decision on 17 August 2020. There is, therefore, also no merit in CVRZ's second ground of review. 9 One further matter bears mentioning before concluding. CVRZ was represented by a lawyer until shortly before the hearing of this matter. When his lawyer ceased to act, CVRZ himself prepared the written submissions that were subsequently filed with the Court. This provides a likely explanation for the fact that there is no reference in those submissions to the time limit issue raised by his two grounds of review above. Instead, those submissions, as well as the oral submissions he made at the hearing of this matter, were devoted to matters including: the dire situation in Zimbabwe should he be forced to return there; the likelihood of him re-offending; concerns for his security arising from the publication of his Tribunal decision on AUSTLII - notwithstanding the fact that it was published under the pseudonym CVRZ; his claim to have undertaken a number of rehabilitation programs; and the availability of safe accommodation and a job if he were to be released from immigration detention. It hardly needs to be said that none of these matters is relevant to CVRZ's two grounds of review above, nor, for that matter, to the question whether the Tribunal committed jurisdictional error in its decision. My attempts to explain these deficiencies to CVRZ at the hearing of this matter were to no avail. 10 For these reasons, CVRZ's originating application will be dismissed. 11 The Minister has sought an order fixing the costs of this proceeding in the sum of $7,241. I consider this is an appropriate matter in which to fix the costs and I consider that amount is consistent with the relevant provisions of the Federal Court Rules 2011 (Cth) and reasonable and appropriate to the nature and complexity of this matter. 12 Accordingly, the orders will be: