1603456 (Refugee)

[2016] AATA 3960

1603456 (Refugee) [2016] AATA 3960 (3 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1603456

COUNTRY OF REFERENCE:                  Pakistan

MEMBER:Giles Short

DATE:3 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 03 June 2016 at 7:23pm

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependant.

STATEMENT OF DECISION AND REASONS

1. The applicants are a husband and wife and their adult son. On 15 March 2016 they lodged an application with the Tribunal for review of a decision of a delegate of the Minister for Immigration, dated [September] 2014, refusing to grant them protection visas. However the delegate in fact made two decisions on that day: he refused to grant the first and second-named applicants (the husband and wife) protection visas and in a separate decision he found that the application by the third-named applicant (their adult son) was invalid. A decision that a visa application is invalid is not a ‘Part 7 reviewable decision’ under section 411 of the Migration Act 1958 (see, for example, SZVCB & Anor v Minister for Immigration & Anor [2015] FCCA 1172) and accordingly the Tribunal does not have jurisdiction to review the latter decision. On 27 May 2016 the applicants’ current representatives wrote to the Tribunal advising that the first-named applicant had instructed them to withdraw the application for review made by the third-named applicant. It follows that the Tribunal has no jurisdiction to review the decision in relation to the third-named applicant.

2. So far as the decision relating to the first and second-named applicants is concerned, in accordance with paragraph 412(1)(b) of the Migration Act and regulation 4.31 of the Migration Regulations 1994, an application for review of this decision had to be made within 28 days after they were notified of the decision in accordance with the relevant statutory requirements. The material before the Tribunal indicates that they were notified of the decision by letter dated [September] 2014 which was dispatched by registered post to their authorised recipient in accordance with sections 494B and 494D of the Migration Act. They were therefore taken to have been notified of the decision 7 working days after the date of the document or on [date] September 2014 in accordance with paragraph 494C(4)(b) of the Migration Act and the last day for lodgement of the application for review was therefore 28 days after that date or on [date] October 2014.

3. On 5 April 2016 the Tribunal wrote to the applicants indicating that it had formed a preliminary view that their application for review was not a valid application as it had been lodged outside the prescribed time limit.  On 18 May 2016 the applicants’ representatives forwarded to the Tribunal a statement signed by the first-named applicant in which he referred to the fact that they had engaged a migration agent, the late [Mr A] to lodge their application for them and that at his request they had attended the Department to provide personal identifiers.  The first-named applicant said that they had subsequently tried to telephone [Mr A] without success and that it had only been [in]March 2016 that their son (the third-named applicant) had telephoned the Department and had been told that they were unlawful.  The first-named applicant said that they had then gone to[Mr A’s] former office where they had been told that he had passed away.

4. The first-named applicant said that he understood that [Mr A’s] registration as a migration agent had lapsed [in] August 2014 and he said that the delegate of the Minister should have known this and should have contacted them to advise them of the refusal of their application.  He said that they had lodged their application for review within a reasonable period of time after becoming aware of the death of [Mr A] and their migration status.  He said that they asked the Tribunal to use its discretionary power and to accept their application for review as a valid application.

5. In a submission dated 20 May 2016 but forwarded to the Tribunal on 19 May 2016 the applicants’ representatives submitted that the appointment of a registered migration agent as an authorised recipient ceased when the migration agent was deregistered. They referred to no statutory provision in support of this submission and the Departmental policy which they quoted indicated, correctly, that in these circumstances the appointment of the migration agent as an authorised recipient would only cease if the applicants varied or withdrew the notice appointing the migration agent as their authorised recipient in accordance with subsection 494D(3) of the Migration Act. The applicants’ representatives further submitted that when the Department became aware that the applicants’ migration agent had been deregistered it should have communicated with the applicants to advise them about the status of their representative and they quoted from the relevant Departmental policy to that effect. They also referred to subsection 494D(5) of the Migration Act, suggesting that it applied when the authorised recipient was not a registered migration agent but that provision only applies where the authorised recipient is not a registered migration agent, the Minister reasonably suspects the authorised recipient of giving ‘immigration assistance’ within the meaning of Part 3 of the Act and the Minister has given the applicant a notice, by one of the methods specified in section 494B, stating that the Minister does not intend to give the authorised recipient documents in accordance with subsection 494D(1). There is no suggestion that these preconditions were met in the present case.

6. Further, and seemingly in the alternative, the applicants’ representatives submitted that their clients had not in fact appointed [Mr A] as their authorised recipient in the first place.  They referred in this connection to the fact that [Mr A] had not ticked the box ‘Yes’ in answer to question 18 on the Form 956 (at folio 122 of the Department’s file CLF[number]) asking if he had been authorised to receive written communication on behalf of his clients.  However in the Form B which the applicants signed [in] February 2014 the box was ticked in answer to question 20 (at folio 100 of the Department’s file) indicating that all written communications about the application should be sent to their migration agent.  The applicants’ representatives submitted in conclusion that in failing to contact the applicants the Department had failed to act in their interests and that ‘there exists enough compelling and compassionate grounds for the Tribunal to exercise its discretionary power to consider the review application as a valid application’.

7. As the applicant’s representatives would be aware, it is well-established that the Migration and Refugee Division of the Tribunal has no authority to entertain an application which is made outside the time limit prescribed under the Migration Act: see, for example, VOAM v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 396. In the present case I am satisfied on the evidence before me that the applicants appointed [Mr A] as their authorised recipient by ticking the box in answer to question 20 on Part B of the application form indicating that they wished all written communications about the application to be sent to their migration agent. In so doing I consider that they gave written notice of the name and address of another person authorised to receive documents on their behalf in accordance with subsection 494D(1) of the Migration Act.

8. As there is no suggestion that the applicants varied or withdrew the appointment of [Mr A] as their authorised recipient, it follows that they were correctly notified of the decision in accordance with the relevant statutory requirements when the letter dated [September] 2014 was dispatched by registered post to their authorised recipient. I do not accept that, as submitted by the applicants’ representatives, the appointment of a registered migration agent as an authorised recipient ceases when the migration agent is deregistered. As referred to above, the applicants’ representatives referred to no statutory provision in support of this submission and the Departmental policy which they quoted indicates, correctly, that in these circumstances the appointment of the migration agent as an authorised recipient would only have ceased if the applicants had varied or withdrawn the notice appointing the migration agent as their authorised recipient in accordance with subsection 494D(3) of the Migration Act. As stated above, there is no suggestion in the present case that they did so.

9. The applicants’ representatives further submitted that when the Department became aware that the applicants’ migration agent had been deregistered it should have communicated with the applicants to advise them about the status of their representative and they quoted from the relevant Departmental policy to that effect.  While it would indeed have been good administrative practice for the Department to have done this in accordance with its stated policy, the fact that the Department failed to comply with its policy or with good administrative practice in this case does not affect the fact that, as I have found above, the decision was notified to the applicants in accordance with the relevant statutory requirements.  As indicated above, I consider that the fact that [Mr A’s] registration as a migration agent had lapsed by the time the applicants were notified of the decision did not affect their appointment of him as their authorised recipient.  While, once again, it would have been good administrative practice for the Department in these circumstances to have sent a copy of the notification to the applicants at their residential address I do not consider for the reasons given above that the fact that [Mr A’s] registration as a migration agent had lapsed by the time the applicants were notified of the decision means that the decision was not correctly notified in accordance with the relevant statutory requirements.

10. I find on the material before me that the letter dated [September] 2014 notifying the applicants of the decision was posted to their authorised recipient on the same day at the postal address which he had provided to the Department for the purpose of receiving documents in accordance with section 494B of the Migration Act. It follows that, in accordance with sections 494C and 494D(2), the applicants are taken to have been notified of the decision on [date] September 2014 and that the prescribed period of 28 days within which the review application could be made ended on [date] October 2014. As the application for review was not received by the Tribunal until 15 March 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. As I have stated above, the Migration and Refugee Division of the Tribunal has no discretion under the relevant statutory provisions to extend the time within which an application for review may be made.

    DECISION

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

    Giles Short
    Senior Member