HASAN (Migration)
[2020] AATA 2859
•23 April 2020
HASAN (Migration) [2020] AATA 2859 (23 April 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:
MIR WASITUL HASAN
MOUSUMI RAHMAN
CASE NUMBER: 1905621
HOME AFFAIRS REFERENCE: BCC2018/2542689
MEMBER:Lilly Mojsin
DATE:23 April 2020
PLACE OF DECISION: Sydney
DECISION:In regard to the first named applicant the Tribunal does not have jurisdiction
The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.
Statement made on 23 April 2020 at 04:00 pm
CATCHWORDS
MIGRATION – Temporary Skill Shortage (Class GK) visa – Subclass 482 (Temporary Skill Shortage) – approved nomination – member of the family unit – notice of appeal rights of review – sufficient information regarding appeal period – sponsored by an approved sponsor – no jurisdiction – decision under review affirmed for secondary applicant
LEGISLATION
Migration Act 1958, ss 65, 66, 140, 337, 338, 411, 412, 494
Migration Regulations 1994, Schedule 2 cls 457.223, 482.212, 482.312; r 4.02CASES
Ali v MHA [2019] FCA 1102
Ahmad v MIBP [2015] FCAFC 182
BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v MIBP [2019] FCAFC 64STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 19 February 2019 to refuse to grant the visa applicants Temporary Skill Shortage (Class GK) visas under s.65 of the Migration Act 1958 (the Act).
The applicants applied for the visas on 6 July 2018. At that time, Class GK contained one subclass: Subclass 482 (Temporary Skill Shortage). The criteria for a Subclass 482 visa are set out in Part 482 of Schedule 2 to the Migration Regulations 1994 (the Regulations). Applicants seeking to satisfy the primary criteria for the visa must meet the ‘Common criteria’ and the criteria of one of three alternative streams: the Short-term stream, the Medium-term stream, or the Labour Agreement stream. Other members of the family unit, if any, who are applicants for the visa need only satisfy the secondary criteria.
The delegate refused to grant the visa on the basis that the primary applicant, the first named applicant, did not satisfy the requirements of cl.482.212 of Schedule 2 to the Regulations because the primary applicant did not have an approved nomination in place.
On 29 October 2019 the Tribunal wrote to the applicants and invited the applicants to comment on or respond to information that it considered would, subject to their comments, be the reason, or part of the reason, for affirming the decision under review.
In particular, the Tribunal advised the primary applicant, that he was not identified in an approved nomination that had not ceased at the time of the delegate’s decision to refuse to grant the visa. The Tribunal also advised him that there was not a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Act or of a decision not to approve the nomination under s.140GB of the Act. The Tribunal advised that the relevance of this information was that the Tribunal does not have jurisdiction to review the decision made by the Department refusing the primary applicant a Subclass 482 visa and the decision refusing to grant the Subclass 482 visa would stand.
In regard to the 2nd named applicant, the Tribunal advised the 2nd named applicant that she had applied for the visa as a member of the family unit of the 1st named applicant and had not made any claim to meet the primary criteria. Further one of the requirements for the grant of a Subclass 482 visa, as a secondary applicant, is that she must be a member of the family unit of a person who holds a Subclass 457 or 482 visa. She was advised that if the Tribunal relies on this information it would find that she was not a member of the family unit of a person who holds a Subclass 457 or 482 visa and the decision under review would be affirmed.
The applicants were invited to comment or respond in writing by 12 November 2019. On 12 November 2019 the applicants’ migration adviser submitted that the Department's refusal notification failed to comply, as required, with s.66(2)(d)(ii) of the Act. Information regarding appeal rights of review was not clearly conveyed to the applicant and therefore the notice was defective. He also opined that the Tribunal had jurisdiction to hear the application.
Does the Tribunal have jurisdiction?
On 18 April 2019, the Full Federal Court handed down the judgment, DFQ17 v MIBP [2019] FCAFC 64. There the Court found that a departmental notification letter for a Part 7 (Protection) reviewable decision, sent by post, did not comply with the requirement to state the time in which the application for review may be made (as required by s.66(2)(d)(ii)). The Court held that the information about the time period in the notification was obscure and incomprehensible. The information to determine the time period was in three places in the notification letter, requiring the applicant to note the date of the notification letter, the prescribed period to apply for review (i.e. 28 calendar days, commencing on the day of notification) and the date on which the applicant was taken to have received the notification letter (i.e. 7 working days after the date of the letter) and then calculate the relevant date from the date the applicant was taken to have received the letter. On that basis the Court found that the time in which the applicant could apply for review had not started to run, and the Tribunal erred in finding that the review application was lodged out of time and it did not have jurisdiction.
On 12 July 2019, the Federal Court distinguished DFQ17 in Ali v MHA [2019] FCA 1102 and found that a notification for a Part 5 (Migration) reviewable decision, which was sent by email and included information to determine the time period to lodge a review application in three places in the departmental notification, complied with s.66(2)(d)(ii) and was valid. The Court found that the notification contained sufficient information to determine the time to lodge the review application and that none of the complexities in DFQ17 were present. The Court confirmed that email notifications were taken to be received at the end of the day the notification was transmitted (s.494C(5)) whereas postal notifications were taken to be received 7 working days after the date of the document (s.494C(4)(a)).
In a submission, dated 17 April 2020, the applicants’ advisor submitted that DFQ17 and BMY18 v Minister for Home Affairs [2019] FCAFC 189 (31 October 2019) and other relevant decisions of the Federal Court should lead the Tribunal to conclude that:
The notification must be considered and the question asked whether it clearly stated when the review application had to be made. There is no one size fits all approach to this but it is a common sense question.
……………..
We submit that in the current case under review at the tribunal, the notification letter in
concern was also sent by email. Based on the reasoning in BMY18, sending the notification
by email reduced but did not eliminate the confusion.The Tribunal has examined the Department notification about the notices sent to applicants. The Tribunal notes that the Department notification was forwarded by email to the applicants’ address for service.
The refusal notification letter from the Department dated 19 February 2019 notified the primary applicant, under the heading ‘Review Rights’, stated:
There is no right of merits review for this decision.
The Department attached a copy of the decision.
On the next page of the Department notification dated 19 February 2019, in relation to the 2nd named applicant, under the heading ‘Review Rights’ it stated:
The decision can be reviewed.
The letter continued, on the same page:
an application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.
You must be physically present in Australia at the time this application for merits review is made.
Under the heading Registries of the Administrative Appeals Tribunal it 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.
The applicants did not challenge that the notice of the Delegate’s decision was transmitted to them on 19 February 2019 to the email address which the applicants had nominated in their visa application as the email address at which the Department could communicate with the applicants including by notifying the applicants of the outcome of their visa applications, pursuant to s.494B(5).
The Tribunal has had regard to the applicants’ submissions and the court judgments referenced therein. On 12 July 2019, the Federal Court distinguished DFQ17 in Ali v MHA [2019] FCA 1102 and found that a notification for a Part 5 (Migration) reviewable decision, which was sent by email and included information to determine the time period to lodge a review application in three places in the departmental notification, complied with s.66(2)(d)(ii) and was valid.
The Tribunal is satisfied that the circumstances in this review is indistinguishable from the judgement in Ali v MHA [2019] FCA 1102. Whilst the 2nd named applicant has submitted that BMY18 v Minister for Home Affairs [2019] FCAFC 189 is relevant and should lead the Tribunal to conclude that the 2nd named applicant’s review should be remitted to the Department, in BMY18 v Minister for Home Affairs [2019] FCAFC 189 the Honourable Justices Reeves, Perram and Charlesworth found:
In general, where the information as to when the notification is taken to have been received is located in the notification away from the section dealing with review rights and under an incorrect heading, there is likely to be a problem and that problem is not solved merely because it was sent by email.
On the other hand, where the information as to when the notification is correctly located under a sensible heading having a connection with the exercise of review rights it is likely that the notification will be clear in the requisite sense, as Ali holds.
Having found the judgment in Ali v MHA [2019] FCA 1102 is relevant in this review, the Tribunal is satisfied that the notification to the applicants was valid and that information regarding appeal rights of review was clearly conveyed to both applicants, individually, and dispatched by email.
Primary Visa Applicant Application for Review
The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02 of the Migration Regulations 1994 (the Regulations) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.
A decision to refuse to grant a Subclass 482 visa is a reviewable decision under Part 5 of the Act in certain circumstances. Specifically, if the applicant made their visa application while in the migration zone and, where it is a criterion for the grant of the visa that the applicant is 'sponsored' by an 'approved sponsor', either the applicant is sponsored by an approved sponsor at the time the application for review of the visa refusal is made to the Tribunal or an application for review of a decision not to approve the sponsor has been made and is pending at the time of the application for review of the visa refusal: s.338(2)(d) of the Act and r.4.02(1A)(k) of the Regulations.
'Sponsored' is defined to include being identified in a nomination under s.140GB of the Act: s.337 of the Act and r.4.02(1AA) of the Regulations. The term 'approved sponsor' is defined in s.5(1) of the Act as a person who has been approved by the Minister under s.140E of the Act in relation to a class prescribed by r.2.58 of the Regulations and whose approval has not been cancelled or otherwise ceased to have effect in relation to that class; or a person (other than the Minister) who is party to a 'work agreement'.
For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination must have been made by a person who was a standard business sponsor at the time the nomination was approved: cl.457.223(4) of Schedule 2 to the Regulations.
It is a criterion for grant of a Subclass 482 visa that the non-citizen is sponsored by an approved sponsor and it follows that s.338(2)(d) of the Act applies to this review application.
Therefore, a decision to refuse a Subclass 482 visa application is reviewable by the Tribunal where, at the time the review application is made to the Tribunal, either:
·the Subclass 457 visa applicant is identified in a nomination under s.140GB of the Act by an 'approved sponsor'. This includes a nomination application that has not yet been determined, or an approved nomination.
·there is a pending application for review of a decision not to approve the sponsor as a standard business sponsor under s.140E of the Act, or a pending review of a decision not to approve the nomination under s.140GB of the Act: s.338(2)(d)(ii) of the Act.
However, it does not include a nomination that has been refused with no review sought of that refusal or, relevantly, a nomination that has lapsed: s.338(2)(d)(i) of the Act;
Based on the reasoning of the Full Federal Court in Ahmad v MIBP [2015] FCAFC 182, the Tribunal finds that it has no jurisdiction under s.338(2)(d)(i) of the Act in regard to the primary applicant. This is because, at the time of lodging the review application on 10 March 2019, the primary applicant was not identified in a nomination that had been approved or was pending.
The Tribunal finds that the delegate's decision in respect of which the 1st named applicant applied for review is not reviewable in regard to the 1st named applicant.
Secondary Applicant
The 2nd named applicant appeared before the Tribunal on 17 April 2020, by telephone, to give evidence and present arguments. The 2nd named applicant was assisted by an interpreter in the Bangla language.
The 2nd named applicant’s advisor attended the Tribunal hearing, by telephone.
The Tribunal discussed with the 2nd named applicant that she had applied for the visa as a member of the family unit of the primary applicant and had not made any claim to meet the primary criteria. Further one of the requirements for the grant of a Subclass 482 visa as a secondary applicant is that she must be a member of the family unit of a person who holds a Subclass 457 or 482 visa. The 2nd named applicant advised the Tribunal that the letter she received had an error. There was no date mentioned that she can ask for the review. Her husband had been refused.
The 2nd named applicant’ advisor provided a submission to the Tribunal, as discussed above.
REASONS AND FINDINGS REGARDING SECONDARY APPLICANT
The 2nd named applicant must meet cl.482.312 of Schedule 2 of the Migration Regulations.
The 2nd named applicant submitted to the Tribunal that she had not been properly notified of the decision, relevant to her, as there was no date on the letter from the Department refusal letter to indicate by when she was required to file an application for review and therefore was defective.
As stated above the Tribunal is satisfied that the 2nd named applicant was notified of the Department decision by letter dated 19 February 2019 and dispatched by email. As discussed above, the Tribunal is satisfied that the notification to the 2nd named applicant was valid.
Clause 482.312 provides:
(1) The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 (Temporary Work (Skilled)) visa or a Subclass 482 (Temporary Skill Shortage) visa.
At the Tribunal hearing the 2nd named applicant did not advance any argument challenging the correctness of the Department’s conclusion regarding the 1st named applicant’s visa status.
As the 1st named applicant, the primary applicant, does not hold a Subclass 457 visa or a Subclass 482 visa, the 2nd named applicant is not a member of the family unit of a person who is the holder of a Subclass 457 visa or a Subclass 482 visa. The Tribunal finds the applicant does not meet subcl.482.312(1), and therefore cl.482.312 is not met.
The Tribunal find that the 2nd named applicant is not entitled to a subclass 482 visa as she does not meet the secondary visa criteria that requires her to be a member of the family of a person who holds a subclass 482 visa, and there is no evidence before the Tribunal that she meets the primary criteria in her own right.
As one of the essential requirements for the visa is not met, the decision under review must be affirmed.
DECISION
In regard to the first named applicant the Tribunal does not have jurisdiction
The Tribunal affirms the decision not to grant the second named applicant a Temporary Skill Shortage (Class GK) visa.
Lilly Mojsin
Member
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Appeal
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