1610265 (Migration)

[2016] AATA 4265

1610265 (Migration) [2016] AATA 4265 (11 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHANGHAI SHAO

CASE NUMBER:  1610265

DIBP REFERENCE(S):  BCC2015/3138017

MEMBER:Bruce Henry

DATE:11 August 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 11 August 2016 at 10:35am

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 15 June 2016, to cancel the applicant’s  Employer Nomination (Permanent) visa under the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 8 July 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 7 working 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 15 June 2016 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements set out in s.494B of the Act and r.2.42 and r.2.55 of the Regulations.

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

   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 7 working days from the day on which you are taken to have been notified of the primary decision. The primary decision was posted to you on 15 June 2016 and, on the basis that 24 June 2016 was the date on which you are taken to have been notified, the last day for lodging the application for review was 5 July 2016. As the application was not received until 8 July 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 5 August 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, stating:

   To begin with, much to my regret, I did not lodge the application on time. However, I believed the application I made on 8th of July 2016 is valid. Please consider my current situation and give me approval. My reasons are as follows:

   Firstly, I was too busy at work to sign and receive letters from early June to early July. As you may know, financial year end (around 30th of June) was the busiest period of time in the year. Since my wife needed to stay at home and take care of our young, dependent child, I have to work very hard to support my family. During that time, I always worked all day long. I was fearful of missing any important letter, so I asked my wife to help me check the mail box every day. Unfortunately, my wife caught a cold at that time, hence she easily got tired and she had to take care of our son while being sick. Due to the bad health condition, she had to rest on bed for more than one week, and I was very worried about her. She told me that during this period, she once went out to buy medicine from a nearest pharmacy. So she probably missed the chance to receive mail. Furthermore, my wife was not good in English, so she could not find a message card from the pile of various junk mails. It was not until I sorted out the mails on the morning of 8th July did I find it hidden in the mountain of junk mails. So I immediately contacted with my boss and asked for a leave. I went straight to the post office and sent my application for review as soon as I finished reading the letter, because I really took this opportunity seriously. 

   Secondly, I asked my migrant agent to help me apply for Subclass 186 – Employer Nomination Scheme visa in case that I was unable to read the official letters due to my poor English. And he is also responsible for the later procedures of my application. My migrant agent explained to me that they also have not received any mail or e-mails from the DIBP, and as my migrant agent has the responsibility to inform me immediately when he receives any letter concerning me, as well as the responsibility to help me lodge applications to AAT. However, in fact, I did not receive any phone call from my migrant agent, which resulted in my application exceeding the time limit. If this had been my migrant agent’s fault, then I would be the victim. Such an important matter is not something I would sabotage so easily as there is absolutely no reason to. So I hope that you could consider this factor, because I was not supposed to suffer the consequences arising from other’s misconduct.

   As a result, although I lodged the application as soon as I possibly could, but was unfortunately still three days after the time limit, I still sincerely hope that Migration & Refugee Division could consider my current circumstance. I really love Australia. I love living here and I love working here. During these years, I have been accustomed to the life here, busy but happily so. If my family and I were to travel back to China we would have nothing left. I have a stable job here. And my professional proficiency has been recognised. In this beautiful country, not only my potential has been developed but my personal value has also been achieved. In addition, in order to have our small family reunion, my wife resigned her job in China and left her parents, coming to Australia with me. Only we know the hardships that we had beared. She never complains and gradually becomes accustomed to the life here. We all have deep love for this country, and we all contribute to this country.

   I understand the importance of being on time, but I earnestly request that you could consider my application. The decision you make will definitely determine my family’s future. I implore you to provide me an opportunity to make explanation and review on the tribunal. I will be deeply grateful. And whatever the results of review will be, at least I could strive for it.

7. It is clear from the applicant’s response that he received the notice of cancellation of his visa from the Department. The applicant says that the Department did not notify his migration agent of the cancellation, however the applicant had not notified the Department that correspondence about the cancellation should be addressed to a migration agent. The Tribunal notes that the Notice of Intention to Consider Cancellation under Section 109 of the Migration Act 1958 that preceded the cancellation was also addressed to the applicant personally, and he received and responded to that notice.

8. Accordingly, the Tribunal has considered the matters raised in the response, and is satisfied that the notification of the decision by the Department was in compliance with the legislation. The legislation does not allow the Tribunal to extend the time for lodgement of a review application or to waive the time requirement.

9. The Tribunal finds that in accordance with r.2.55(7) of the Act, the applicant is taken to have been notified of the decision on 24 June 2016. Therefore the prescribed period within which the review application could be made ended on 5 July 2016. As the application for review was not received by the Tribunal until 8 July 2016, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

    Bruce Henry
    Member