Ghee (Migration)

[2020] AATA 4660

Ghee (Migration) [2020] AATA 4660 (31 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Guek Sim Ghee
Ms Yi Ting Eng

CASE NUMBER:  2010108

DIBP REFERENCE(S):  BCC2019/5062794 BCC20195062794

MEMBER:Antonio Dronjic

DATE:31 August 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 31 August 2020 at 4:15pm

CATCHWORDS

MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 Temporary Skill Shortage – review application out of time – No jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

CASES

Ali v MHA [2019] FCA 1102
BMY18 v MHA [2019] FCAFC 189

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 5 February 2020 to refuse to grant GK – Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 17 June 2020. 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 the applicant was notified of the decision in accordance with the statutory requirements.

3. The material before the Tribunal indicates that the applicants were notified of the decision by letter dated 5 February 2020 and dispatched by email. The Tribunal is satisfied that the applicants were notified of the decision in accordance with the statutory requirements.

4. The Tribunal formed the preliminary view that it did not have jurisdiction because the applications for review were not received within the prescribed period for lodgement. The Tribunal wrote to the applicants on 25 June 2020 inviting submissions on this issue.

5. On 1 July 2020, the first named applicant wrote to the Tribunal stating that it is not clear which day is the commencing date for review period in the refusal notification.

6. BMY18 v MHA confirmed that where all the information required to determine the time period to make a review application (i.e. the prescribed period and when the applicant is taken to have received the notification) is contained under an appropriately titled heading such as ‘Review Rights’, the notification will be valid (irrespective of whether it was sent by post or email for both Part 5 and Part 7 matters).[1] The Court also confirmed the approach taken in Ali v MHA[2] that a notification letter will be valid if the information about when the notification is taken to have been received is under the heading ‘Lodging an Application for Review’, even where it is separated from the prescribed period information.[3]

   [1] BMY18 v MHA [2019] FCAFC 189 at [17]–[19].

   [2] In Ali v MHA [2019] FCA 1102 at [24]–[25] and [29]–[30].

   [3] BMY18 v MHA [2019] FCAFC 189 at [36].

7. The Tribunal has examined the Department’s notification in light of recent court judgements about the clarity of the notices sent to applicants.  The Tribunal notes that under the heading Review Rights it states that an application for merits review of this decision must be given to the AAT within 21 calendar days commencing on the day you are taken to have received this letter. On the same page of the notification letter it is stated that “as this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 5 February 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 26 February 2020.

9. As the application for review was not received by the Tribunal until 17 June 2020 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.

    Antonio Dronjic
    Member