Le (Migration)

[2019] AATA 2809

Le (Migration) [2019] AATA 2809 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Duc Hoan Le

CASE NUMBER:  1900854

DIBP REFERENCE(S):  BCC2018/676246

MEMBER:Mark Bishop

DATE:18 February 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2019 at 3:00pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – review application out of time – alleged negligence of migration agent – no jurisdiction

LEGISLATION

Administrative Appeal Tribunal Act 1975, ss 24, 29
Migration Act 1958, s 65
Migration Regulations 1994, Section 2 cl 457.223; r 4.10

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228
Brown v Minister for Home Affairs (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 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 9 February 2018.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4)(a) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl.457.223(4)(a) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The delegate refused to grant the visa on 10 December 2018 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination and had not withdrawn his application in writing.

5. For the following reasons, the Tribunal has concluded it does not have jurisdiction in this matter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

7. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

8. On 25 January 2019 the Tribunal wrote to the applicant and advised his application for review was not a valid application as it was not lodged within the relevant time frame. The applicant was invited to respond in writing by 8 February 2019.

9. On 30 January 2019 the applicant responded to this request for information. He advised as follows:

   ·I reference the response by the nominating business - 183318

   ·I was sponsored by H& Q Trading Pty Ltd as The Trinh & Le Family Trust is an Australian company, successfully running and is owned by Australian Citizens.

   ·The directors of the company used the services of Sam Nyugen of Essen Lawyers, who was a registered migration agent and lawyer, subsequently and without our clients control the Law firm has closed and MARA barred him on 15 June 2018

   ·The director was advised and notified of the correspondence on the 28th November via a late night text message.

   ·The director was not advised that an application for extension of time to make an application could have been made, nor was advised from the now barred agent.

   ·Section 29 of the Administrative Appeal Tribunal Act 1975 (cth) addresses the ‘prescribed time’ for making applications.

   ·I cite the case of Brown & Minister for Home Affairs (No2) [2018] FCA 1787 which gives the power to accept applications outside the time frame, especially considering the negligence and incompetency of the Migration Agent involved.

   ·It will be a great injustice and lack of procedural fairness if the application is not considered valid, especially as the nomination and my sponsorship is genuine.

10. The MA for the applicant submitted there were special circumstances provisions under s.29 of the AAT Act that permitted the Tribunal to entertain late applications. The MA outlined the detail of those special circumstances as being a great injustice and lack of procedural fairness.

11. The Tribunal has considered this submission. S.24Z of the AAT Act states that Part IV does not apply to Part V Reviews under the Migration Act.

12. 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.

13. 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.

14. 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.

15. 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.

16. For these reasons the requirements of cl.457.223(4)(a) not met.

17. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Mark Bishop
    Member