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[2010] AATA 270
procedural. Pursuant to section 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to deal with this application for review.
The delegate cancelled the applicant's visa on 10 March 2010. A valid written notice of cancellation was handed to the applicant on 19 March 2010. Under s500(6B) of the Migration Act, any AAT review had to be lodged within nine days of that notification. The nine-day period expired on 29 March 2010, but the applicant's review application was not received by the Tribunal until 31 March 2010. Because the Migration Act removes the Tribunal's power to extend that time, the Tribunal held it had no jurisdiction to hear the late application.
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A delegate of the Minister cancelled Mr George Turaga's Class BS Partner (Residence) Subclass 801 visa under s501(2) of the Migration Act 1958 on 10 March 2010. The Department handed Mr Turaga a Notice of Visa Cancellation (with accompanying documents) on 19 March 2010; he and a witness signed an acknowledgment of receipt [Relevant factual background, paras 2–3]. Mr Turaga dated an application for review of the delegate's decision on 20 March 2010, but the application was not received by the Administrative Appeals Tribunal's Western Australia Registry until 31 March 2010 [Relevant factual background, para 4].
2 cited instruments linked from this judgment.
Section 500(6B) of the Migration Act applies because the decision under s501 concerned a person in the migration zone. Section 500(6B) requires that, in that circumstance, an application for review must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision in accordance with s501G(1). That subsection also expressly excludes the operation of paragraph 29(1)(d) and subsections 29(7)–(10) of the Administrative Appeals Tribunal Act 1975, which would otherwise permit the Tribunal to extend time [Relevant legislation, s500(6B); Reasons [2]].
Deputy President S D Hotop examined the Notice of Visa Cancellation and the manner in which it was given. He concluded the notice complied with the content requirements of s501G(1) and was given in a manner prescribed by reg 2.55(3)(a) of the Migration Regulations (personal handing). Regulation 2.55(5) provides that if a document is handed to a person, the person is taken to have received the document when it is handed [Reasons [3]]. On that basis the nine-day period ran from 19 March 2010 and, applying s36(2) of the Acts Interpretation Act 1901 because the ninth day fell on a Sunday, the period expired on Monday 29 March 2010 [Reasons [4]]. Because the application was not lodged until 31 March 2010, and because the Tribunal lacks power to extend the statutory period under s500(6B), the Tribunal held it did not have jurisdiction to deal with the application [Reasons [5]–[6]]. The Tribunal therefore ordered under s500(6B) that it did not have jurisdiction to deal with the review application.
The decision rests on a straightforward application of the statutory text and the prescribed methods for giving notice.
Application of s500(6B): The starting point is the statutory rule that, where a s501 decision concerns a person in the migration zone, any Tribunal review must be lodged within nine days of notification as required by s501G(1). The subsection also removes the Tribunal's power to extend time by excluding particular provisions of the AAT Act. The Tribunal treated this clause as a clear jurisdictional gate: if the claim is not lodged within the nine-day window, the Tribunal lacks jurisdiction [Reasons [2]].
Determination of the notification date: To identify when the nine-day clock began, the Tribunal examined whether the notice given satisfied s501G(1) and whether it had been given in a prescribed manner. The Tribunal found the Notice of Visa Cancellation complied in content with s501G(1) and was personally handed to the applicant on 19 March 2010 in accordance with reg 2.55(3)(a). Regulation 2.55(5) deems the person to have received the document at the time of personal delivery. That made 19 March 2010 the operative date for commencing the nine-day period [Reasons [3]].
Computation of the statutory period: Because the ninth day after 19 March 2010 fell on a Sunday, s36(2) of the Acts Interpretation Act 1901 shifts the expiry to the next Monday, 29 March 2010. The Tribunal compared that deadline to the date the application was actually received (31 March 2010) and found it late [Reasons [4]–[5]].
Lack of extension power: The Tribunal emphasised that s500(6B) expressly excludes the AAT's ordinary power to extend time under the AAT Act, so the Tribunal could not remedy the late lodgement even if it wished [Reasons [2], [5]].
In short, the Tribunal followed the statutory commands in sequence: identify the operative notification date, compute the statutory period, determine whether the application fell within it, and apply the statutory bar on extension. These were treated as jurisdictional constraints that the Tribunal cannot override.
Before this decision, the statutory architecture was already settled: Parliament enacted s500(6B) to curtail the ordinary AAT extension powers for decisions under s501 relating to persons in the migration zone. The Tribunal relied on that statutory framework and authority in Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494, which the Tribunal applied by reference to the proposition that non-compliance with s500(6B) time limits results in lack of jurisdiction [Reasons [6]].
After this decision, the practical state of the law is confirmed: where s500(6B) applies, strict compliance with the nine-day lodging requirement is necessary and jurisdictional. The decision reinforces that personal service in accordance with reg 2.55(3)(a) triggers deemed receipt under reg 2.55(5), and that computation of time uses the Acts Interpretation Act rules. Practitioners must therefore be acutely attentive to the date of effective notification and ensure timely lodgement, because the Tribunal cannot extend the period.
This decision is an application rather than a novel change to the law; it confirms existing statutory controls and the strictness with which courts and the Tribunal will treat the s500(6B) timetable.
Key passage: "Pursuant to section 500(6B) of the Migration Act 1958 the Tribunal does not have jurisdiction to deal with this application for review." [Introduction, para 1]
Plain-English translation: The Tribunal has no power to decide Mr Turaga's appeal because the statutory time limit set by s500(6B) was not met.
Key passage: "I am satisfied that that notice fully complies with s501G(1) of the Act and is a valid notice... pursuant to reg 2.55(5), the applicant is taken to have received that notice when it was handed to him on 19 March 2010." [Reasons, para 3]
Plain-English translation: The cancellation letter contained the information the law requires and it was properly handed to Mr Turaga, so legally he is treated as having received it on the day it was handed to him.
Key passage: "Because the 9th day, namely, 28 March 2010, fell on a Sunday, the prescribed 9-day period expired on Monday, 29 March 2010 (see s36(2) of the Acts Interpretation Act 1901)." [Reasons, para 4]
Plain-English translation: When a time limit ends on a Sunday, the law moves the deadline to the following Monday; here the deadline was 29 March 2010.
Key passage: "As previously mentioned, the applicant's application for review was not received by the Tribunal... until 31 March 2010 - that is, 2 days after the expiration of the 9-day period... the Tribunal does not have the power to grant an extension of the 9-day period." [Reasons, paras 5–6]
Plain-English translation: The review application arrived late and the Tribunal cannot extend the deadline, so it cannot hear the case.
This decision will be triggered when the following facts are present:
Practitioners should therefore treat the effective date of notification, the method of service, and the mode of lodgement (ensuring actual receipt by the appropriate registry within nine days) as determinative in s500(6B) cases.
In this decision the Tribunal applied Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494 as authority for the jurisdictional effect of s500(6B) (Reasons [6]). The Tribunal's reasoning is consistent with a line of authority treating s500(6B) time limits as jurisdictional and strict.
Because the Tribunal's decision here is an application of statutory text and established precedent, later courts and tribunals considering similar late-lodgement scenarios will treat this decision as reinforcing the settled approach: confirm the operative date of notification, compute the nine days carefully, be alert that s500(6B) excludes extension powers, and refuse jurisdiction when the statutory period has expired.
Practitioners should monitor subsequent Federal Court decisions for any nuance about what constitutes 'lodgement' (e.g. whether electronic or fax transmission to the correct registry before the expiry constitutes lodgement) and for any developments on what compliance with s501G(1) means in marginal cases. But the immediate effect of this decision is confirmatory: Parliament intended strict time limits for s501-related reviews in the migration zone, and the Tribunal will apply them literally.
Several practical and doctrinal questions remain relevant in this area, though not decided newly in this judgment:
Precise moment of 'lodgement': The Tribunal treated lodging as the Tribunal actually receiving the application at the relevant Registry. This raises practical questions about when electronic lodgement, fax transmission, or courier delivery count as 'lodged with the Tribunal' for the purposes of s500(6B). The judgment applies the concept of reception by the Tribunal and thus underscores the risk that delays in transmissive methods can be determinative. Future decisions may further clarify whether time-stamping of electronic filings or receipt by a centralised e-lodgement facility constitutes 'lodgement'.
Effect of defective notices: The Tribunal found the Notice complied with s501G(1) and reg 2.55. If a notice were deficient in content or not given in a prescribed manner, the nine-day clock might not commence, or the notice might be invalid. The judgment does not explore marginal cases of partial compliance with s501G(1) or contested receipt where acknowledgment is absent. Such fact patterns will continue to arise and require close attention to the precise statutory requirements and evidence of delivery.
Postal or registry misdirection: The applicant dated his review on 20 March 2010 but the Tribunal did not receive it until 31 March 2010. The judgment does not discuss whether lodgement might be treated as occurring at the date of posting or sending where postal or administrative errors (e.g., misdirected mail, delays within government agencies) are implicated. The statutory text, as applied here, treats actual receipt by the Tribunal as decisive in the absence of available extension power. Future litigation may test whether, in particular circumstances, equitable considerations or other statutory provisions could affect the treatment of attempted but unsuccessful lodgement within nine days.
Interaction with later statutory amendments or practice directions: Migration law is subject to frequent statutory and regulatory change. Amendments to s500(6B), s501G, or the Migration Regulations, or Tribunal practice directions about electronic lodgement, could alter the application of these principles. Practitioners must watch legislative change and Tribunal practice to assess whether this strict approach is modified administratively or legislatively.
In conclusion, Turaga is a clear application of s500(6B) and the prescribed notification and service rules. It reinforces that in migration zone s501 cancellations the nine-day rule is jurisdictional, personal handing triggers deemed receipt, and the Tribunal cannot extend the time. Practitioners acting for visa holders and respondents must be meticulous about notification dates, service methods, and ensuring actual receipt by the correct Tribunal registry within the statutory window.
Pursuant to section 500 (6B) of the Migration Act 1958 (Cth), the Tribunal does not have jurisdiction to deal with this application for review.
PRACTICE AND PROCEDURE - jurisdiction - applicant's visa cancelled - applicant notified of cancellation decision on 19 March 2010 - applicant lodged application for review with Tribunal on 31 March 2010 - statutory provision that application for review must be lodged with Tribunal within 9 days after proper notification of decision - Tribunal's power to extend time for making application for review excluded by statutory provision - applicant properly notified of decision on 19 March 2010 - applicant's application for review lodged with Tribunal after expiration of statutory 9-day period - Tribunal does not have jurisdiction in respect of application for review
Migration Act 1958 (Cth), s 500(6B) and s 501G(1)
Migration Regulations 1994 (Cth), reg 2.55
Pomare v Minister for Immigration and Citizenship [2008] FCA 458; (2008) 167 FCR 494
" Pursuant to section 500(6B) of the Migration Act 1958 (Cth) the Tribunal does not have jurisdiction to deal with this application for review."
On that occasion I stated orally my reasons for making that order.
" (6B) If a decision under section 501 of this Act 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."
" 501(G) Refusal or cancellation of visa - notification of decision
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non-disclosable information) for the decision; and
(f) if the decision was made by a delegate of the Minister under subsection 501(1) or (2) and the person has a right to have the decision reviewed by the Administrative Appeals Tribunal:
(i) states that the decision can be reviewed by the Tribunal; and
(ii) states the time in which the application for review may be made; and
(iii) states who can apply to have the decision reviewed; and
(iv) states where the application for review can be made; and
(v) in a case where the decision relates to a person in the migration zone - sets out the effect of subsections 500(6A) to (6L) (inclusive); and
(vi) sets out such additional information (if any) as is prescribed.
...
(3) A notice under subsection (1) must be given in the prescribed manner.
..."
" 2.55 Giving of documents relating to proposed cancellation, cancellation or revocation of cancellation
(1) This regulation applies to:
...
(b) the giving of a document under subsection 501G (3) of the Act relating to a decision to cancel a visa under subsection 501(1) or (2) or 501A(2) or section 501B or 501F of the Act; and
...
(3) Subject to subregulation (3A), for a document mentioned in paragraph (1)(a) or (c), the Minister must give the document in one of the following ways:
(a) by handing it to the person personally;
(b) by handing it to another person who:
(i) is at the person's last residential or business address known to the Minister; and
(ii) appears to live there (in the case of a residential address) or work there (in the case of a business address); and
(iii) appears to be at least 16 years of age;
(c) by dating it, and then dispatching it:
(i) within 3 working days (in the place of dispatch) of the date of the document; and
(ii) by prepaid post or by other prepaid means;
to the person's last residential address, business address or post box address known to the Minister;
(d) by transmitting the document by:
(i) fax; or
(ii) e-mail; or
(iii) other electronic means;
to the last fax number, e-mail address or other electronic address known to the Minister.
...
(4) Subject to subregulation (4A), for a document mentioned in paragraph (1)(b):
REASONS FOR DETERMINING THAT THE TRIBUNAL DOES NOT HAVE JURISDICTION IN THIS APPLICATION
Pomare
Minister for Immigration an
(2008) 167 FCR 494
Pursuant to section 500(6B) of the Migration Act 1958, the Tribunal does not have jurisdiction to deal with this application for review.
(a) if the person has held the visa for less than 1 year when the document is to be given, the Minister must give the document in one of the ways mentioned in subregulation (3); and
(b) if the person has held the visa for at least 1 year when the document is to be given:
(i) Immigration must try to find the person; and
(ii) the Minister must give the document in one of the ways mentioned in subregulation (3).
...
(5) If the Minister gives a document to a person by handing it to the person, the person is taken to have received the document when it is handed to the person.
..."