Jamshid (Migration)

[2019] AATA 4044

Jamshid (Migration) [2019] AATA 4044 (19 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Feroza JAMSHID

CASE NUMBER:  1901574

DIBP REFERENCE(S):  BCC2017/699452

MEMBER:Nathan Goetz

DATE:19 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 February 2019 at 1:00pm

CATCHWORDS

MIGRATION – Return (Residence) (Class BB) – Subclass 155 (Five Year Resident Return) – lodgement of application – application outside of time – non-payment of fees – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 109, 338
Migration Regulations 1994 (Cth), r 4.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. On 10 January 2019, a delegate of the Minister for Immigration cancelled the applicant’s Return (Residence) (Class BB) visa under s.109 the Migration Act 1958 (the Act). The notification was sent to [email protected] which is the email address of Legal Migration Services who represent the applicant.

2. On 23 January 2019, the applicant, through her migration agent, lodged a review of this cancellation decision with the Tribunal. This was filed by hand under cover letter of the migration agent.

3. On 1 February 2019, the Tribunal wrote to the applicant through her migration agent inviting her to comment on the validity of her review application. In this letter, the Tribunal raised two issues which appeared to make the application invalid. Firstly, it appeared that the review application had not been lodged within the prescribed timeframe. Secondly, it appeared that the review applicant had not paid the prescribed fee for the review. The Tribunal asked that the applicant respond in writing by 15 February 2019 addressing these validity points.

4. On 4 February 2019, the Tribunal received a written response from the migration agent.

5. In regards to the timing of the lodgement of the review application, the agent drew the Tribunal’s attention to the following information which was contained in the notification:

The decision to cancel your visa can be reviewed.

You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).

An application for merits review of this decision must be given to the AAT within the prescribed timeframe.

The prescribed timeframe is 28 calendar days, commencing on the day you are taken to have received this letter.

1. The agent submitted that the Minister, though the delegate, prescribed a period of 28 calendar days within which the Review Applicant could lodge an Application for Review of the decision.

2. In regards to the non-payment of the prescribed fee, the migration agent wrote that:

‘As the case is a refugee case, we submit that no filing fee is payable.’

CONSIDERATION

1. An application for a review to cancel a visa pursuant to s.109 of the Act is governed by the provisions of s.338 of the Act. This makes these decisions a Part 5 Reviewable Decision. In the circumstances of this case, s.338(3) applies to a person who has had a visa cancelled while they are in the migration zone and provides that the person has 7 working days in which to lodge a review of the cancellation. That would mean that the applicant had until 21 January 2019 to lodge a review application of the cancellation decision. As noted above, the review application was not lodged until 23 January 2019 which is outside the prescribed period.

The Notification

1. The Tribunal does not accept the argument of the migration agent that the delegate has prescribed a period of 28 calendar days for the applicant to apply for merits review. There is nothing before the Tribunal to suggest that the delegate has the power to individually set their own prescribed periods for review. It is clear to the Tribunal that the delegate, in completing the notification of cancellation notice, has put down the wrong period for review and has done so in error, because the Act provides clearly the prescribed timeframe for review to the Tribunal. The question for the Tribunal is what should flow from this error?

10.  R.2.42(2) of the Regulations governs the requirements for a valid notification of a primary decision for a decision to cancel a visa under s.109 of the Act. The only requirements of the notice are that the notification is sent to the former holder of the visa, and that it sets out the grounds for the cancellation. This can be contrasted with visa cancellations under s.116 of the Act where s.127(2) requires that the notice include the time in which the application or review can be lodged, as do decisions to refuse a visa where s.66(2) of the Act. In the Tribunal’s view, the omission of the requirement to include the time in which the application for review can be reviewed may have been an oversight in the drafting of the Regulations, or may have been a deliberate policy decision by Government. However, the Tribunal has considered the Regulations strictly and it is clear that there is no requirement for review timeframes to be included in this cancellation notice.

11.  It is regrettable that the delegate included an erroneous prescribed timeframe in the notification letter. It would have been much better for the delegate to be silent as to the timeframe or for the delegate to include the correct timeframe as provided in the Act. However, the inclusion of this erroneous information does not invalidate the notice. The notice was sent to the migration agent on 10 January 2019. Any review of the decision was required to be lodged by 21 January 2019. The application for review is outside of time.

Non-Payment of the Prescribed Fee

12.  The Tribunal has also considered the validity of the application regarding non-payment of the prescribed fee. As noted previously, a decision to cancel a visa is a Part 5 Reviewable Decision. Regulation 4.13 of the Regulations prescribes the fee payable for these types of decisions. Fees payable are determined by reference to when the review application was made. The fee may be waived, reduced or refunded in certain circumstances.

13.  The applicant’s submission that no fee is payable because this is a ‘refugee case’ (by that, the Tribunal understands that to mean a Part 7 Decision) is incorrect. A cancellation decision is a different type of decision to granting or refusing a protection visa application, or granting of refusing a refugee visa. It is a cancellation decision and not a refusal decision. The Tribunal does not accept that no fee is payable because the applicant ‘is a refugee’. The Tribunal notes that the delegate decision refers to the applicant applying for a protection visa and it was the answers given in that application which gave rise to the grounds for the cancellation, but the visa that was cancelled by the delegate was a resident return visa.

14. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 21 January 2019. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

15.  Given the above, the application for review was not filed within the prescribe timeframe and was not accompanied with the prescribed fee. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

DECISION

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

Nathan Goetz
Member