1513717 (Migration)

1513717 (Migration) [2016] AATA 3267 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Prabath Hiroshan Samarawansa Lelwala Arachchige
CASE NUMBER:  1513717
DIBP REFERENCE(S):  OSF2014/017181
MEMBER:Lisa Lo Piccolo
DATE:16 February 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in this matter.
Statement made on 16 February 2016 at 12:01pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 27 August 2015, to refuse to grant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).
The review application was lodged with the Tribunal on 8 October 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.
Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) an application for review of this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 27 August 2015 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 26 January 2016 the Tribunal received a submission from the representative. The representative submitted that the Department’s decision was not received by the applicant’s previous migration agent and authorised recipient. The representative enclosed an email from the previous migration confirming same, and noting that the email address stated in the cover letter of the decision was incorrect and included a full stop at the end of the address. It was asserted that the address was invalid and “could have contributed to the agent not receiving the decision.” The representative also stated that the previous agent acted in breach of the migration Agent’s Code of Conduct when he provided information to the Department regarding the breakdown of the spousal relationship. Finally, the representative refers to the Form 956 signed by the applicant for his initial appointment of the migration agent which has not been signed by the agent. The representative questions whether the Department should have ever relied upon the Form 956 implying that the Department should have sent a copy of the decision record to the applicant.
This submission was sent in response to the Tribunal’s letter dated 13 January 2016 inviting the applicant to comment on the validity of the application for review. The Tribunal has considered the documentation submitted.

Conflict of Interest

The Tribunal has considered the representative’s claim that the previous migration agent had a conflict of interest in communicating with the Department regarding the breakdown of the relationship and was in breach of the Migration Agents Code of Conduct. This claim does not assist in resolving the question of whether the applicant is taken to have been notified of the decision on 27 August 2015.

Form 956 – whether agent validly appointed

The Tribunal has considered the argument that the Department should have notified the applicant of the decision not the applicant’s former migration agent, because the applicant’s former migration agent did not sign the Form 956 appointment.
For a person to be appointed as an authorised recipient under s.494D of the Act, a person must give the Minister written notice of the name and address of another person (the authorised recipient) authorised by the first person to do things on behalf of the first person that consists of, or includes, receiving documents in connection with matters under the Act or regulations. There is no requirement that the authorised recipient indicates their acceptance of the arrangement by also signing the document containing the appointment.
In Huang v MIAC [2011] FMCA 271, the applicant’s agent (who was not a registered migration agent) completed a visa application form on the applicant’s behalf and nominated himself as authorised recipient, the applicant claimed that he had not authorised his agent to nominate himself as authorised recipient and the Court applied principles of contract law to find that there was an implied actual authority from the circumstances of the agency and that the Department was correct to send the decision notification to the authorised recipient.
Accordingly, the Tribunal does not accept that the agent’s appointment became invalid as a result of him not signing the Form 956.

Incorrect Email address

Whilst the Tribunal notes that the email address referred to in the letter of notification of refusal is correct, the Tribunal acknowledges that the email address stated in the cover letter of the decision is incorrect because it includes a full stop at the end of the email address.
The Tribunal has reviewed the email dispatch confirmation for the notification of the Department’s decision on the Department’s electronic portal (T.f.52). This confirms that notification of the Department’s decision was sent to the correct email address of the applicant’s former authorised representative on 27 August 2015 at 11.24pm.
Accordingly, the Tribunal is satisfied that the notification was sent to the correct email address of the applicant’s former migration agent.
The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 27 August 2015.
Therefore the prescribed period within which the review application could be made ended on 17 September 2015. As the application for review was not received by the Tribunal until 8 October 2015 it follows that the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

DECISION

The Tribunal does not have jurisdiction in this matter.

Lisa Lo Piccolo
Member

This case involved a review of a decision by a delegate of the Minister for Immigration, under the Migration Act 1958, to refuse to grant a Partner (Migrant) (Class BC) visa to Mr Prabath Hiroshan Samarawansa Lelwala Arachchige. The decision was lodged with the Migration and Refugee Division of the Administrative Appeals Tribunal on 8 October 2015. The primary issue before the Tribunal was whether it had jurisdiction to review the decision, considering the timing of the review application.

The Tribunal examined whether the review application was made within the statutory timeframe, which required it to be lodged within 21 days of the applicant being notified of the decision. The Tribunal found that the applicant was notified of the decision on 27 August 2015, and the review application was lodged on 8 October 2015. The Tribunal concluded that the review application was not made within the prescribed 21-day period, thus it was not made in accordance with the relevant legislation. Consequently, the Tribunal held that it lacked jurisdiction to review the decision.

The Tribunal further examined arguments put forward by the applicant's representative regarding the validity of the notification and the appointment of the migration agent. However, these arguments did not change the fact that the applicant was notified of the decision on 27 August 2015 and that the review application was lodged beyond the statutory timeframe. Therefore, the Tribunal reiterated that it did not have jurisdiction to review the decision.

The final orders made by the Tribunal were that it did not have jurisdiction to review the decision of the delegate of the Minister for Immigration, and the review application was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established