Arco Windows Pty Ltd (Migration)

[2019] AATA 140

Arco Windows Pty Ltd (Migration) [2019] AATA 140 (18 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Arco Windows Pty Ltd

CASE NUMBER:  1836641

DIBP REFERENCE(S):  BCC2018/4590019

MEMBER:Alison Mercer

DATE:18 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 January 2019 at 2:16pm

CATCHWORDS

MIGRATION – Nomination of an occupation (employer nomination) – review application out of time – no jurisdiction

LEGISLATION

Administrative Appeals Act 1975, ss 24, 29
Migration Act 1958, ss 65, 338, 494C
Migration Regulations 1994, rr 2.72, 4.02, 4.10

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Home Affairs (No.2) [2018] FCA 1787

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 19 November 2018, to refuse to approve a nomination application made by the applicant, Arco Windows Pty Ltd, under the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The review application was lodged with the Tribunal on 13 December 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. The nomination refusal is reviewable under s.338(9) of the Act, as it is a prescribed decision under r.4.02(4)(d).

4. For the above decisions, the prescribed time period in which a review application must be made to the Tribunal is within 21 calendar days after the date that the primary decision is notified to the applicant: r.4.10(1)(d).

5. The Tribunal is satisfied that the primary decision was notified to the applicant via email to its registered migration agent, who was also the applicant’s authorised recipient for correspondence, on 19 November 2018. The date of notification is therefore taken to be 19 November 2018: s.494C(5).  Accordingly, the last date for lodgment of the review application was 10 December 2018.

6. On 19 December 2018, the Tribunal wrote to an authorised officer of the applicant, via their agent, to invite them to comment on the validity of the review application. The Tribunal advised that a preliminary view had been formed that the review application had not been validly lodged on 13 December 2018, as it had been lodged outside the prescribed period ending on 10 December 2018. The letter advised that the matter would be ultimately determined by a Tribunal Member, and that any comments received by 7 January 2019 would be taken into account by that Member before a final determination was made in relation to the validity of the review application.

7. The Tribunal received a response from the applicant’s agent on 7 January 2019, in which she made the following points:

   ·the review application was one of 4 review applications lodged with the Tribunal on behalf of the applicant for the occupation of Joiner (ANZSCO code 331213), one of which was lodged within 21 days of the refusal decision (Client ID 1836648);

   ·as the nomination applications lodged with the Department were the same, the determination of the Tribunal of application Client ID 1836648 will also apply to this application for review;

   ·the Tribunal should apply the decision in Brown v Minister for Home Affairs(No.2) [2018] FCA 1787, in which Greenwood J held that the 21 day timeframe to lodge an application for review of a decision to refuse an application in the Migration Review Division (MRD) of the Tribunal did not strictly apply;

   ·it was acknowledged that this decision was subsequently overturned by the Full Federal Court in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 on 14 December 2018. However, the decision in Brown overturned, albeit briefly, the strict 21 day time frame, and it was submitted that this review application was made before Beni overturned Brown, and also that Beni would be the subject of judicial consideration in future; and

   ·the Tribunal was therefore requested to exercise its discretion and find that the review application was validly lodged on the basis that the 21 day timeframe did not apply at the time that the application for review was lodged with the Tribunal (as per Brown), and the nomination application for review was the same as a valid application for review lodged on behalf of the applicant with the Tribunal.

8. The Tribunal has considered these submissions. It is of the view that the Tribunal - in divisions other than the Migration and Refugee Division (MRD) - has the power to extend time limits.[1] However, the Full Federal Court in Beni expressly considered the provisions of the Administrative Appeals Act 1975 which permit the other divisions of the Tribunal to extend time limits and held that they do not extend to the MRD and confirmed that the MRD does not have the power to extend time limits.[2] Consequently, where a review application is lodged outside of the relevant prescribed period, the MRD of the Tribunal will not have jurisdiction.

   [1] Sections 29(7)-(10) of the Administrative Appeals Act 1975 (the AAT Act) permit the Tribunal to extend the time to apply for review, however, s.29 of the AAT Act does not apply to reviews in the MRD due to s.24Z of the AAT Act. Section 24Z(1) provides that, except for provisions specified in s.24Z(2), Part IV of the AAT Act (which contains s.29) does not apply in relation to a proceeding in the MRD. Section 24Z(2) states that sections 25 and 42 apply to a proceeding in the MRD.

   [2] Beni v MIBP [2018] FCAFC 228 (McKerracher, Reeves and Thawley JJ,14 December 2018) at [64]-[66] and [83]. The Full Federal Court held that the Tribunal was correct to conclude that ss.29(7)-(10) of the AAT Act did not apply to the proceeding which was before it by virtue of s.24Z of the AAT Act, such that there is no power for the Tribunal (MRD) to extend the time limit for making a review application. An alternative view was expressed in Brown v MHA (No.2) [2018] FCA 1787 (Greenwood J, 19 November 2018) where a single judge of the Federal Court held that s.29 of the AAT Act applied to an application for review of a Part 5-reviewable decision, specifically the power conferred upon the Tribunal under s.29(7) and s.29(8) to extend the time for the making of an application to the Tribunal for review of a decision. However, as Beni [2018] FCAFC 228 is a decision of the Full Court (bench of three judges) and expressly considered Brown and found it was wrongly decided, it is expected that courts are likely to follow Beni and find that the Tribunal has no power to extend time limits.

9. While the earlier case of Brown held otherwise for a period, it was a decision of an inferior court and the Tribunal must follow the Full Federal Court decision in Beni. As the FCAFC in Beni clearly found that the reasoning in Brown was incorrect, it follows that the approach in Brown cannot stand, and that it cannot and should not be applied in retrospect, even for the period before which the FFC decision in Beni was made.

10. Accordingly, the Tribunal finds that the 21 calendar day prescribed period applies in this case, and it further finds that this particular review application was lodged with the MRD outside that period (the last date of which was 10 December 2018), on 13 December 2018. The Tribunal has no power to extend that period, as noted above (and confirmed in Beni). Nor is it relevant that another review application made by the applicant for the same occupation may have been validly lodged by the Tribunal. The Tribunal is required to consider the validity of the particular review application in this case, and it finds that it was lodged out of time. As a result, it is not a valid application for review, and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Alison Mercer
    Member