1600462 (Migration)

[2016] AATA 3307

1600462 (Migration) [2016] AATA 3307 (23 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Rev. Nanda Thero Ihalagonagama

CASE NUMBER:  1600462

DIBP REFERENCE(S):  BCC2015/1562818

MEMBER:Bruce Henry

DATE:23 February 2016

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal does not have jurisdiction in this matter.

Statement made on 23 February 2016 at 12:45pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 22 December 2015, to refuse to grant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The applicant had been nominated as a Minister of Religion ANZSCO Code 272211 by the Sri Lanka Buddhist Monastery (Brisbane) Inc (SLBM).

2. The review application was lodged with the Tribunal on 14 January 2016. 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.

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 December 2015 and dispatched by email to the address provided by the applicant in the visa application, which was the address of a member of the management committee of SLBM whom the applicant nominated as his authorised recipient.

5. On 19 January 2016 a Tribunal officer wrote to the applicant stating:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant an Employer Nomination (Permanent) visa.

   I am of the view that your application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to you on 22 December 2015 and, on the basis that 22 December 2015 was the date on which you were taken to have been notified, the last day for lodging the application for review was 12 January 2016. As the application was not received until 14 January 2016, it appears to be out of time.

   However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 12 February 2016. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

6. The applicant replied by email on 27 January 2016:

   We refer to your letter of 29/01/2016 stating that the application for review submitted in respect of refusal to grant the above ENS visa has not been lodged within the prescribed timeframe (21 days), and your view that it could not be considered as a valid application. Despite the oversight on our part in not complying with the set deadline, we take this opportunity to thank you most sincerely for inviting us to make comments from our side as to why the review application may still be considered as a valid document.
   We do agree with your observation that it was not lodged in good time although the review application together with the cover letter signed by the visa applicant and the SLBM Representative (the writer) was ready for lodgement, in person, at the AAT Registry in Brisbane by the due date (12th of January 2016). Even at this eleventh hour, the Management Committee did not believe that it has to lodge an application for a merits review of the refusal of the Visa Application when the refusal of Nomination which is directly linked with that visa application has already been disputed and would become the subject of a review by the AAT.
   In fact, the protracted episode began on the 1st of December 2015 with the delegate’s decision to refuse the approval of a Nomination lodged by the SLBM. On the same day, another letter was received inviting the nominee (Rev Nanda Thero) to comment on the fate of his Visa Application following the refusal of Nomination submitted by the employer. The “Invitation to comment on information for a EN (subclass 186) Visa” said, since the nomination had been declined there was no prospect of granting the Visa and advised the nominee to either withdraw the visa application within 28 days (giving up rights for a merits review) or face outright refusal of visa which entitles the nominee (visa applicant) to apply for a merits review of this decision.

7. After setting out in detail the dealings between the Management Committee of the SLBM, the response concluded:

   In summary, the following (events, processes, activities, procedures and attitudes) seemed to have contributed to the late lodgement (48 hour delay) of the appeal against the decision to refuse the visa application.

   1. Attempts to obtain reliable information re visa status of the nominee to brief the SLBM MC before making an informed decision. A genuine effort was made in this regard as evident from Annexure 1 & 2.

   2. The SLBM Institutional procedures, constitution and conventions had to be followed to reach a consensus on this issue. Two Management Committee meetings were convened on 16/12/2015 and 07/01/2016 and a special group meeting was called on 07/12/2015 to shed some light on the refusal of both the nomination and the visa application.

   3. The SLBM as a responsible employer has obligations to the nominee who has already served the SLBM for more than 4 ½ years. The MC has an obligation to defend not only the nominated position but also the visa application which met all other criteria except the Minister’s approval of the Nomination.

   4. The e-mails received from the DIBP at times were contradictory and confusing and not very helpful, but as a responsible organisation the SLBM would not lay any blame on the DIBP or its staff because mistakes can be made by anyone when replying to e-mails or answering telephone calls on a wide range of visa matters.

   5. Despite the differences in the number of days (21 or 28) applicable to lodgement of appeals and some erroneous information given in the e-mails from the DIBP (Annexure 1 & 2) with regard to the lodgement of the application (M1) for a merits review, the SLBM made every effort to meet the deadline (21 days after the visa refusal - 12th January, 2016) but unfortunately, the e-mails received at the eleventh hour (12th & 13th January, 2016) discouraged the lodgement planned for January 12.

   6. The SLBM MC still cannot comprehend why a nominee should apply for a merits review of the decision refusing the visa application when that refusal is a direct consequence of the refusal of nomination by the Minister which is currently the subject of a merits review by the AAT.

   You will note that the period between Dec 1 and Dec 21 (refusal of nomination) and also that between Dec 22 and January 14, 2016 (refusal of visa application) have been the most challenging and decisive periods for the SLBM.

   Finally, as a responsible organisation the SLBM has not given any excuses for the belated lodgement of the visa appeal but instead, provided you with factual evidence in support of the six factors mentioned above which appear to have contributed to the lodgement of the appeal two days after the 21 day period prescribed in law.

8. The Tribunal notes that the departmental file contains an email sent to the SLBM by the Department on 8 January 2016 which states ‘If an appeal against the visa refusal decision for the Reverend Nanda Thero is lodged with the AAT within 28 days of notification of refusal, a bridging visa will be issued to the applicant’.

9. It is equally clear from the file and from the response of the applicant quoted above, however, that the applicant was notified of the decision on 22 December 2015 at which time he was correctly advised that he had 21 calendar days to apply for review by the Tribunal. It is also clear from the response to the Tribunal’s letter regarding the jurisdictional issue that SLBM were aware that the application for review needed to be lodged by 12 January 2016, and their correspondence with the Department concerned issues surrounding the need for an application for review and the grant of a bridging visa to the applicant rather than the date for lodgement of the application.

10. Unfortunately for the applicant the legislation does not allow the Tribunal to extend the time for lodgement of a review application or to waive the time requirement. The Tribunal has considered the matters raised in the response, and is satisfied that notwithstanding the incorrect information provided by the Department in its email of 8 January 2016, the notification of the decision by the Department was in compliance with the legislation.

11. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 22 December 2015. Therefore the prescribed period within which the review application could be made ended on 12 January 2016. As the application for review was not received by the Tribunal until 14 January 2016 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

12. The Tribunal does not have jurisdiction in this matter.

    Bruce Henry
    Member