CTV GROUP (AUSTRALIA) PTY LTD (Migration)

[2017] AATA 1715

CTV GROUP (AUSTRALIA) PTY LTD (Migration) [2017] AATA 1715 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  CTV GROUP (AUSTRALIA) PTY LTD

CASE NUMBER:  1714492

DIBP REFERENCE(S):  BCC2017/117646

MEMBER:Alan McMurran

DATE:2 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2017 at 5:18pm

CATCHWORDS

Migration – Nomination – Subclass 457 (Temporary Work (Skilled) visa – Application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 2.72, r 4.10

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 25 May 2017, to refuse to grant a nomination - Subclass 457 (Temporary Work (Skilled) visa - against the prescribed criteria in regulation 2.72 of the Regulations under the Migration Act 1958 (the Act).The delegate was not satisfied the position associated with the nominated application is genuine and does not satisfy paragraph 2.72(10)(f).

2. The review application was lodged with the Tribunal on 6 July 2017. 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. The materials before the Tribunal indicates that the applicant was notified of the decision by email dated 25 May 2017 and dispatched by email the same date. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The letter sent by email states clearly that the applicant is entitled to make application to the Tribunal for a merits review of the decision within 21 days after the day on which the applicant is taken to have received the letter. Where the letter so advising is despatched by email, it is taken to have been received at the end of the day it was transmitted, that day being 25 May 2017.

6. A natural justice letter was sent to the review applicant on 17 July 2017, informing the applicant that the application was not received by the Tribunal until 6 July 2017, and appears to be out of time. The review applicant was asked to make any comments on whether a valid application was made and before the matter was determined.

7. A response was received by the Tribunal by email from the review applicant attaching a letter, undated, and signed by a director of CTV Group (Australia Pty Ltd), Zhaojian Zhang. The letter was recorded on the Tribunal’s file as received on 31 July 2017 at 18.29.

8. The director says he is extremely sorry for the late submission (of the review application) saying he was not aware that he should lodge the application for review, as he was awaiting the decision of the visa application by the nominee. The director asks for time to be extended because of his mistake, which he says may affect the development of the company sponsor.

9. The Tribunal notes the response from the director, but in view of the Tribunal’s letter of 25 May 2017, which very clearly states the time period, does not accept that the company was “not aware” that it should lodge the application for review within the specified time period. The Tribunal is unable pursuant to the Act and Regulations to extend the time for lodgement of an application for review beyond the time specified.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 25 May 2017. Therefore the prescribed period within which the review application could be made ended on 15 June 2017. As the application for review was not received by the Tribunal until 6 July 2017 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

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

    Alan McMurran
    Member