Houston (Migration)

[2020] AATA 6194

Houston (Migration) [2020] AATA 6194 (10 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shavron Sheldon Houston
Mrs Simone Eileen Houston
Miss Samara Deanna Houston
Mr Shiloh Jacques Houston

CASE NUMBER:  2016153

DIBP REFERENCE(S):  BCC2020/1220726

MEMBER:Alan McMurran

DATE:10 December 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 December 2020 at 4:23pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – application for review lodged out of time – timing of notification of the cancellation – No jurisdiction

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

CASES
Beni v Minister for Immigration and Anor [2018] FCCA 756

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 21 October 2020 to cancel the applicant’s Temporary Business Entry (Class UC) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 2 November 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 7 working 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 21 October 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

   Brief chronology

   ·3 November 2017 applicant granted Temporary Work (Skilled) Subclass 457 Visa as a Chef, expiring 3 November 2021;

   ·19 February 2020 new nomination application lodged

   ·10 March 2020 current employment ceased

   ·26 August 2020 new nomination refused

   ·18 August 2020 Notice of Intention to Consider Cancellation (NOICC) issued:

   ·18 August 2020 applicant responds in person

   ·23 August 2020 response due to NOICC

   ·8 September 2020 applicant rep requests EOT to respond to NOICC:

   ·21 October 2020 visa cancelled

   ·21 October 2020 applicant rep requests decision “be vacated”

   ·29 October 2020 Department response-AAT review available within approved timeframe (7 days from notification)

   ·30 October 2020 last day to file AAT application for review

   ·2 November 2020 AAT application lodged

   ·2 November 2020 applicant rep requests EOT for late lodgement in AAT

   ·2 November 2020 Tribunal natural justice letter in response by 16 November 2020

   ·12 November 2020 applicant rep responds and attaches statutory declaration from applicant setting out detailed circumstances concerning the applicant’s employment and termination, and the applicant’s personal circumstances as a consequence of the cancellation of the visa.

4. The Tribunal has considered the above matters referred to in the chronology and as set out in the Department’s file and the Tribunal’s file.

5. The applicant’s EOT request to the AAT includes the following points:

   1.       Although the notice was mailed to Kotze Law offices on 21 October 2020, Applicant only “received the notice”, in a telephonic discussion to him on 22 October 2020. Although explained telephonically, the impact and consequences could not, and was not realized up until a detailed consultation on 26 October 2020.

   2.       The electronic mail was only received by him on 23 October 2020;

   3.       Only on 26 October 2020 via a consultation, the full content could be explained.

   4.       Applicant still awaited a response with regards to the request that DOHA vacate the decision.

   5.       DOHA only answered on 29 October 2020, when receiver of the e mail was in a rural area with limited electronic communication.

6. The Tribunal finds that there is nothing in the submission concerning the timing of notification of the cancellation and the application which shows there has been some error or failure in that regard.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on Wednesday, 21 October 2020 :s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 October 2020. The Tribunal has no discretion to vary or extend the mandated time limit for the filing of an application.[1]

   [1] Beni v Minister for Immigration and Anor [2018] FCCA 756

8. As the application for review was not received by the Tribunal until 2 November 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

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

   Alan McMurran
   Member