1611363 (Migration)

[2016] AATA 4390

1611363 (Migration) [2016] AATA 4390 (2 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Sasha Hoole

CASE NUMBER:  1611363

DIBP REFERENCE(S):  BCC2015/3238447

MEMBER:Alison Mercer

DATE:2 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2016 at 2:44pm

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 29 June 2016, to refuse to grant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 26 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 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. On 2 August 2016, the Tribunal wrote to the applicant via her registered migration agent to invite her to comment on whether or not her review application had been validly lodged.  The Tribunal advised that a preliminary view had been formed that it had not been validly lodged as it was not received by the Tribunal within the relevant time limit, which was 21 days from the date on which the applicant was taken to have been notified of the primary decision. The Tribunal noted that the primary decision was emailed to the applicant on 29 June 2016, and that she was therefore deemed to have been notified on that date.  As a result, the last date for lodgment of her review application was 20 July 2016, but her application was not lodged until 26 July 2016.  The Tribunal invited her to provide written comments on this issue by 16 August 2016, and indicated that if received, they would be taken into consideration by a Tribunal Member who would ultimately determine whether the review application had been validly lodged.

5. On 16 August 2016, the Tribunal received an email response from the applicant’s agent in which he argued that (in summary):

   ·on behalf of the applicant, the agent attempted to make an online review application on 19 July 2016 but it could not be lodged due to a web error;

   ·after 3 attempts, the review application was logged in but there was no receipt or acknowledgement for payment received, and the agent received no acknowledgement of receipt from the Tribunal;

   ·on 25 July 2016, the agent rang the Tribunal to confirm receipt and was informed that the application had not been received;

   ·no screenshots of the web error message were taken as the agent and applicant were unaware of how the situation would unfold;

   ·on 26 July 2016, another review application was made online and accepted by the Tribunal’s system.  A confirmation of receipt and payment was received from the Tribunal; and

   ·as the above situation was outside the control of the applicant, the Tribunal was asked to find that the review application was validly lodged.

6. The Tribunal notes that the act of posting or faxing an application does not equate with lodgment. The application must be physically received at a registry of the Tribunal for lodgment to have taken place.[1]  In relation to electronic lodgment, an application is ‘given to’ the Tribunal when it is physically delivered which, in respect of an electronic transmission, means that it must be capable of being retrieved by the Tribunal.[2] In Liu v MIBP, the Court held an application was not ‘given to’ the Tribunal within the prescribed period because it was not received by the Tribunal’s facsimile server and was not capable of retrieval within that period.[3]

   [1] rr.4.10(5) and (6) [MRT] and 4.31(4) [RRT] (Pre 1 July 2013) and rr.4.11(2), (3), (4) and (5) [MRT/Part 5] and r.4.31AA(2), (3), (4) and (5) [RRT/Part 7] (Post 1 July 2013). Hong Ye v MIMIA (1998) 153 ALR 327 at [330] and Angus Fire Armour Australia Pty Ltd v Collector of Customs(NSW) (1988) 19 FCR 477 at [488]‑[489].

   [2] Liu v MIBP [2013] FCCA 2208 (Cameron J, 9 December 2013). See also Gajjar v MIBP [2013] FCCA 1859 (Judge Barnett, 14 November 2013).

   [3] Upheld on appeal: Liu v MIBP [2014] FCA 469 (Marshall J, 12 May 2014). See also SZSKX v MIBP [2014] FCCA 157 (Judge Driver, 4 April 2014). In that case facsimile records indicated the applicant’s agent had successfully faxed a review application to the facsimile number of the Tribunal registry, but the Tribunal had not received it. The Court found the Tribunal’s evidence of non-receipt of the facsimile transmission was credible and as such sufficient to displace the presumption in s.161(1) of the Evidence Act 1995 (Cth) that the facsimile had been received by the Tribunal at the time that the agent’s records indicated the facsimile transmission had concluded.

7. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 June 2016 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal has undertaken a review of its online lodgment system and has not identified any technical issues that were recorded in relation to 19 or 20 July 2016 (20 July 2016 being the last day on which the application could have been validly lodged within time) which would have prevented online lodgment of a review application.

9. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 29 June 2016. Therefore, the prescribed period within which the review application could be made ended on 20 July 2016. As the application for review was not received by the Tribunal until 26 July 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

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

    Alison Mercer
    Member