Grace (Migration)

[2019] AATA 2107

Grace (Migration) [2019] AATA 2107 (1 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Michael Anthony Grace
Ms June Margaret Tutty
Master Aaron Ryan Grace
Miss Jasmine Lily Ellen Grace

CASE NUMBER:  1902132

DIBP REFERENCE(S):  BCC2018/4790975 PNJ

MEMBER:Antonio Dronjic

DATE:1 March 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 March 2019 at 2:02pm

CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – review application made out of time – notification letter sent to authorised recipient – applicant unaware of decision notice – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 66, 347, 494B, 494C
Migration Regulations 1994 (Cth), r 4.10

CASES
Huang v MIAC [2011] FMCA 271

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 3 January 2019 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 31 January 2019. 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 applicant was notified of the decision by letter dated 3 January 2019 and dispatched by email.

4. The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement. The Tribunal wrote to the applicant on 13 February 2019 inviting submissions on this issue.

5. On 28 February 2019, the applicants responded by conceding that the review applications were not lodged within the prescribed period and stating that the previously appointed authorised representative, Mr Michael Culleton, failed to inform the applicants that he, as an authorised recipient, received the primary decision record on 3 January 2019. They further stated that it was only on 30 January 2019 that they become aware that Mr Culleton migration registration number ceased on 30 October 2018. The applicants stated that they received a copy of the primary decision on 25 January 2019.

6. If a person has given the Minister written notice of the name and address of another person (the authorised recipient) who has been authorised by the applicant to receive documents in connection with specified matters arising under the Migration Act or the Regulations, the Minister must give the authorised recipient any documents in connection with those matters that the Minister would otherwise have given to the applicant.[1]

   [1] s.494D. See Lee v MIAC (2007) 159 FCR 181 per Besanko J at [38].

7. For example, in Huang v MIAC[2]  the applicant’s agent (who was not a registered migration agent) completed a visa application form on the applicant’s behalf and nominated himself as authorised recipient, the applicant claimed that he had not authorised his agent to nominate himself as authorised recipient and the Court applied principles of contract law to find that there was an implied actual authority from the circumstances of the agency and that the Department was correct to send the decision notification to the authorised recipient.

   [2] Huang v MIAC [2011] FMCA 271 (Smith FM, 6 May 2011).

8. Accordingly, the Tribunal finds that notification letter and a copy of the primary decision were sent to the address provided by the applicant in the application. The Tribunal finds that the decision notice was emailed on the day it was dated to the correct email address, in accordance with s.66(1) and s.494B(5).

9. Therefore, the applicant is taken to have received the notice on 3 January 2019, being the day when the notice was transmitted. The Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 3 January 2019. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 24 January 2019.

10. As the application for review was not received by the Tribunal until 31 January 2019 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.

    Antonio Dronjic
    Member