Karzi (Migration)

[2019] AATA 1530

Karzi (Migration) [2019] AATA 1530 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohd Younas Karzi

CASE NUMBER:  1900973

DIBP REFERENCE(S):  BCC2018/5679502

MEMBER:Mark Bishop

DATE:25 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 25 February 2019 at 9:13am

CATCHWORDS

MIGRATION – Medical Treatment (Visitor) (Class UB) visa – Subclass 602 (Visa) – applicant was notified of the decision in accordance with the statutory requirements – application was lodged outside of the relevant prescribed period– Tribunal has no power to extend time limits– no jurisdiction

LEGISLATION

Administrative Appeals Act 1975, ss 24Z, 29(7)-(10)

Migration Act 1958, s 65, 347, 494C

Migration Regulations 1994, Schedule 2, r 4.10

CASES

Beni v MIBP [2018] FCAFC 228

Brown v MHA (No.2) [2018] FCA 1787

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 January 2018 to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 15 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 21 December 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 1 February 2019 the Tribunal wrote to the applicant and advised her application was not a valid application as it was not lodged within time. The Tribunal requested the applicant respond in writing by 15 February 2019.

5. The applicant advised as follows:

   ·The applicant’s migration agent (MA) was on holiday until 21 December 2018. He did not have access to his email until 11 January 2019. On 14 January 2019 the MA advised the applicant of the visa application refusal. The MA advised time of lodgement for merit review had passed;

   ·The applicant believes the decision of the department was unfair;

   ·The absence of the MA in Malaysia was the reason for the refusal;

   ·The applicant seeks review because the situation was out of control of the MA and the applicant.

6. The Tribunal in divisions other than the MRD has the power to extend time limits. The Full Federal Court in Beni v MIBP expressly considered the provisions of the Administrative Appeals Act 1975 which permit the other divisions of the Tribunal to extend time limits and held that they do not extend to the MRD and confirmed that the MRD does not have the power to extend time limits. Consequently, where a review application is lodged outside of the relevant prescribed period, the MRD of the Tribunal will not have jurisdiction.

7. In Beni v MIBP [2018] FCAFC 228 (McKerracher, Reeves and Thawley JJ,14 December 2018) at [64]-[66] and [83] the Full Federal Court held that the Tribunal was correct to conclude that ss.29(7)-(10) of the AAT Act did not apply to the proceeding which was before it by virtue of s.24Z of the AAT Act, such that there is no power for the Tribunal (MRD) to extend the time limit for making a review application.

8. An alternative view as cited above in paragraph 9 was expressed in Brown v MHA (No.2) [2018] FCA 1787 (Greenwood J, 19 November 2018) where a single judge of the Federal Court held that s.29 of the AAT Act applied to an application for review of a Part 5-reviewable decision, specifically the power conferred upon the Tribunal under s.29(7) and s.29(8) to extend the time for the making of an application to the Tribunal for review of a decision. However, as Beni v MIBP [2018] FCAFC 228 is a decision of the Full Court (bench of three judges) and expressly considered Brown v MHA (No.2) and found it was wrongly decided, the Tribunal follows it and finds that the Tribunal has no power to extend time limits.

9. As the applicant was notified correctly by the Department of the decision but lodged a review application outside the prescribed timeframe then the Tribunal has no discretion to review the decision and therefore, has no jurisdiction in the matter.

10. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 December 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 11 January 2019.

11. As the application for review was not received by the Tribunal until 15 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

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

    Mark Bishop
    Member