Dhir (Migration)

[2019] AATA 3121

Dhir (Migration) [2019] AATA 3121 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sapna DHIR
Mr Rajbir Singh
Miss Kaya
Mr Anurag Singh

CASE NUMBER:  1832112

DIBP REFERENCE(S):  BCC2016/1651387

MEMBER:Mireya Hyland

DATE:18 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2019 at 4:24pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – review application out of time – alleged negligence by migration agent – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, ss 24, 25, 29
Migration Act 1958, ss 65, 347, 494
Migration Regulations 1994, r 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. This is an application for review of a decision of a delegate of the Minister for Immigration on 6 August 2018 to refuse to grant the applicants, Mrs Sapna Dhir, her husband and her children, Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 1 November 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. 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 Mrs Dhir was notified of the decision in accordance with the statutory requirements. If an applicant has given the Minister written notice of the name and address of another person authorised to receive documents in connection with a visa application (the authorised recipient), the Minister must give the authorised recipient any documents that the Minister would otherwise have given to the applicant. If the Minister gives the document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D of the Act.

3. The material before the Tribunal indicates that Mrs Dhir and her family authorised Mr Sourabh Aggarwal to receive correspondence on their behalf. Their authorised recipient was notified of the decision by letter dated 6 August 2018 and dispatched by email to the email address last provided to the Minister for the purposes of receiving documents. The Tribunal is satisfied that Mrs Dhir and her family were notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that Mrs Dhir and her family are taken to have been notified of the decision on 6 August 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 27 August 2018.

5. On 2 November 2018, the Tribunal wrote to Mrs Dhir’s then authorised recipient, Mr Aggarwal, inviting Mrs Dhir to comment on the validity of the application for review. On 14 November 2018, the Tribunal received correspondence appointing a new authorised recipient. On 14 November 2018, the Tribunal wrote to Mrs Dhir’s new migration agent again inviting her and her family to comment on the validity of their application for review by 28 November 2018. On 26 November 2018 the Tribunal received a submission from Mrs Dhir’s migration agent together with a statutory declaration from Mrs Dhir.

6. In her statutory declaration, Mrs Dhir explained that her previous agent, Mr Aggarwal, had neglected to lodge the review application within the prescribed period. The declaration documents her contact with Mr Aggarwal and the ill-treatment she and her husband were subject to once it became clear that the review application had not been lodged and her visa had ceased. In his submission, Mrs Dhir’s current migration agent argued that a recent decision by the Federal Court of Australia had held that the Tribunal has the discretion to accept late applications and requested that it use the power conferred on it under s.29(7)-(10) of the Administrative Appeals Tribunal Act 1975 (the AAT Act) to give Mrs Dhir and her family an opportunity to have the delegate’s decision reviewed.

7. It is true that in November 2018, the Federal Court held that, by virtue of s.24Z(2) and s.25(6) of the AAT Act, the power to extend time contained in s.29(7)-(10) of that Act was available to the Migration and Refugee Division of the Tribunal: see Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787. However, on 14 December 2018, the Full Federal Court overturned that decision, finding that Brown No. 2 was wrongly decided and should not be followed: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 per McKerracher, Reeves and Thawley JJ at [83]. Subsections 29(7)-(10) of the AAT Act do not apply to this Division of the Tribunal by virtue of s.24Z, and no part of s.25 or any other section of the AAT Act, has the effect of applying s.29 to its proceedings under Part 5 or Part 7 of the Act.

8. Mrs Dhir, in her submission, did not claim, and there is no evidence before the Tribunal to indicate, that the Department of Home Affairs did not send the notification to the correct person or address. The only claim is that the email went to an authorised recipient whom Mrs Dhir had also appointed as her migration agent, but who did not then follow her instructions and lodge the review application in time. Sections 494C(5) and 494D(2) of the Act deem that Mrs Dhir and her family are taken to have received the notice of the decision at the end of the day on which the document was transmitted to Mr Aggarwal, being 6 August 2018. This is so even if the document was never, in fact, received. While an application for an extension of time under s.29(10) of the AAT Act is available in other divisions of the Tribunal, the Tribunal constituted to consider a matter in the Migration and Refugee Division does not have any discretion to extend the 21 day prescribed period for making a valid review application. Unfortunately, this is the case regardless of how reasonable the explanation may be, how diligent Mrs Dhir may have been in pursuing her then agent, or whether the failure to lodge the application in time was outside Mrs Dhir’s and her family’s control, as appears to be the case.

9. While the Tribunal feels for Mrs Dhir and her family, because the application for review was not received by the Tribunal until 1 November 2018 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.

    Mireya Hyland
    Member