1618534 (Migration)

[2016] AATA 4816

1618534 (Migration) [2016] AATA 4816 (16 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Randox Australia Pty Ltd

CASE NUMBER:  1618534

DIBP REFERENCE(S):  BCC2016/534982

MEMBER:Katie Malyon

DATE:16 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 16 December 2016 at 10:32 am

CATCHWORDS

Migration – Employer Nomination – Review lodgement within the prescribed period – Payment of prescribed fee – Approved review application form – Review application not valid – No jurisdiction

LEGISLATION

Migration Act 1958, ss 347(1), 347(1)(b), 494C

Migration Regulation 1994, r 4.10, r 4.13, r 4.13(4)

CASES

Kirk v MIMA (1998) 87 FCR 99

Braganza v MIMA (2001) 109 FCR 364

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision by a delegate of the Minister for Immigration, dated 20 September 2016, to refuse an employer nomination application by under the Migration Act 1958 (the Act).

2. The review application was lodged by Randox Australia Pty Ltd (the Company) with the Tribunal on 11 October 2016.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the delegate’s decision as the application was not made in accordance with the relevant legislation.

3. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994 (the Regulations) this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) of the Act and r.4.10 of the Regulations, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) of the Regulations that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 11 October 2016. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

4. Material before the Tribunal indicates that the Company was notified of the decision by letter dated 20 September 2016 and dispatched by email.  The Tribunal is satisfied that the Company was notified of the decision in accordance with the statutory requirements.

5. On 11 October 2016, the Tribunal received at 4:05:52 am a facsimile covering letter from the Company’s head office (based in Northern Ireland) together with assorted documentation in support of the review.  However, the Company did not use the correct review application form and nor did it pay the review application fee.  This is despite the Department notifying the Company in its covering letter of 20 September 2016 refusing the Company’s employer nomination application that details about the merits review process to the Tribunal are available on the Tribunal’s website

6. The Tribunal formed the preliminary view that the delegate’s decision is not reviewable because it appeared the review application lodged with the Tribunal on 11 October 2016 is not a valid application as it was not made on the approved form (Form M1 – Application Form Migration) and the application fee has not been paid.  A Tribunal Officer endeavoured to contact the Company by email on 17 October 2016.  No response was received.  Subsequently, Company contacted the Department for an update on its application for review.  On 22 November 2016, the Tribunal wrote to the Company inviting comments on the validity of its application for review.  No response was received to the Tribunal’s letter.

7. The Tribunal finds that prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter. Furthermore the Tribunal finds that, in accordance with s.494C of the Act, the Company is taken to have been notified of the delegate’s decision on 20 September 2016. Therefore, the prescribed period within which the review application could be made ended on 11 October 2016. As no application on the correct form within the relevant time limit has been received 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

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

   Katie Malyon

   
   Member