Javed (Migration)

[2020] AATA 3403

Javed (Migration) [2020] AATA 3403 (29 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Saad Javed
Mrs Aqsa Saad

CASE NUMBER:  1836079

DIBP REFERENCE(S):  BCC2018/3316908

MEMBER:Linda Holub

DATE:29 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2020 at 1:11pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application out of time – impact of recent court judgments – validity of Department’s notification letters – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 362, 494C
Migration Regulations 1994, r 4.10

CASES

BMY18 v Minister for Home Affairs ]2019] FCAFC 189
DFQ17 v Minister for Immigration ]2019] FCAFC 64
Singh v Minister for Immigration [2020] FCAFC 31

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 9 November 2018 to refuse to grant Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 8 December 2018. 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 9 November 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The primary visa applicant was notified of the student visa refusal on 9 November 2018. The last day to lodge a valid application with the correct application fee was 30 November 2018. The applicant lodged an application for review on 8 December 2018.

5. The Tribunal wrote to the applicant on 20 December 2018 to inform him that his application appears to have been lodged outside of the relevant time period. The Tribunal provided him until 3 January 2019 to make comments.

6. On 4 January 2019, the applicant submitted a statement explaining his personal situation and why he missed the deadline to apply for review. In addition to this, he submitted several documents to the Tribunal including:

   a.a court attendance notice regarding an assault matter dated 16 October 2018.

   b.image of injuries sustained from the assault.

   c.audio recording of a conversation between the applicant’s wife and a real estate agent about unpaid rent.

   d.AGL bill for his rental property (statement period 17 August 2018 to 5 November 2018).

   e.notice from AGL of direct payment declined dated 28 December 2018.

   f.proof of balance statement dated 3 January 2019.

7. On 26 June 2019, the Tribunal emailed the applicant to inform him that due to a recent court judgment the Tribunal may have jurisdiction to review his case.

8. On 6 November 2019, at the primary applicant’s request the Tribunal sent a letter confirming that the primary applicant’s wife was added to the review.

9. On 18 December 2019, the Tribunal wrote to the applicants to inform them that recent court judgments, including DFQ17 v Minister for Immigration ]2019] FCAFC 64 (18 April 2019) and BMY18 v Minister for Home Affairs ]2019] FCAFC 189 (31 October 2019), identified problems with the validity of notifications letter issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made. As a result of this their case has been re-assessed in light of this and it would appear that the Tribunal has jurisdiction to accept his review application.

10) On 3 April 2020, the Tribunal wrote to the applicants to inform them that since the last letter dated 26 June 2019 there has been a further court judgment Singh v Minister for Immigration [2020] FCAFC 31 (28 February 2020). The notification letter issued to them by the Department of Home Affairs has been re-assessed following this judgment. The letter explains that it would appear that they were validly notified under the Migration Act 1958, with the consequence that the application for review was not valid as it appeared to have been lodged outside of the prescribed timeframe. The Tribunal granted an extension of time until 1 May 2020 to provide comments.

11) The Tribunal received the representative’s submissions on 1 May 2020. In the submission the representative provided a timeline of events since lodgment, legal submissions regarding how their application is distinguishable from the Singh judgment and supporting attachments from the Tribunal file obtained via a 362A information request.

12) The Tribunal notes, in particular, that the representative submits that the applicants’ matter can be distinguished from Singh. It was submitted the notification letter as it related to the applicants’ is not sufficiently clear as to the relevant time frames for the review referring to the headings in the notification letter and the particular circumstances of the applicants.  According to the submission, the primary applicant was therefore not validly notified, and the Tribunal should accept it has jurisdiction in this matter.

13) The Tribunal does not accept the argument put forward. The Tribunal is satisfied that information regarding the applicants’ review rights, their immigration status and information regarding receipt of the letter are all found under relevant headings. The Tribunal does not accept that the fact of two applicants being included in the Department’s refusal letter alters this.

14) The Tribunal has had regard to the representative’s request that no decision be made on this application, because the current travel bans prevent the applicants from returning to Pakistan.  Further it was submitted that the applicants will not be able to apply for a further substantive visa to remain in Australia due to the s. 48 bar and will be unable to depart due to the current travel bans.

15) These issues are not relevant to whether a valid review application has been made.

16) The Tribunal has also considered the statement and various evidentiary documents the applicant submitted in January 2019.  The applicant submitted that he was in a difficult situation in November 2018. He refers to his inability to pay various bills and his rent and other factors which impacted on his marriage.  Based on the evidence submitted the Tribunal accepts that the applicant has some financial difficulties and was the victim of an assault in May 2018 and that he had option of giving evidence in relation to the assault on 14 November 2018.  Nevertheless, the applicant did not lodge his review application until after the prescribed time period.

17) The Tribunal finds that the applicant is taken to have been notified of the decision on 9 November 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 November 2018.

18) As the application for review was not received by the Tribunal until 8 December 2018 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

19) The Tribunal does not have jurisdiction in this matter.

Linda Holub
Member