Lestari (Migration)

[2021] AATA 3430

Lestari (Migration) [2021] AATA 3430 (14 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Gini Lestari

CASE NUMBER:  2017685

DIBP REFERENCE(S):  Visa no: 1914764845

MEMBER:Alison Mercer

DATE:14 January 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 14 January 2021 at 4:12pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – applicant was notified of the decision in accordance with the statutory requirements – application was lodged outside of the relevant prescribed period– no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29

Migration Act 1958, ss 127, 347, 494, Schedule 2

Migration Regulations 1994, rr 2.55, 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
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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 1 October 2009 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 9 December 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 1 October 2009 and dispatched by hand. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements of r.2.55. Specifically, the Tribunal is satisfied that the letter and decision were given by to the applicant, as permitted by r.2.55(3)(d), and that the notification letter and decision complied with s.127(2) of the Act as they specified the criterion/provision upon which the visa was cancelled, gave written reasons, specified that the decision was reviewable by the Tribunal, specified the time in which the review application had to be lodged, specified who could apply for review, and specified where the review application could be made. The Tribunal is satisfied that this information was set out sufficiently clearly, as required by DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64.

4. On 15 December 2020, the Tribunal wrote to the applicant (via email to her registered migration agent, who was also her authorised recipient for correspondence) to advise that a preliminary view had been formed that her application was not a valid application as it was not lodged within the relevant time limit.  The Tribunal advised that the time limit was 7 working days from the day on which the applicant was taken to have been notified of the primary decision.  The Tribunal noted that as the primary decision was given to her by hand on 1 October 2009, this was the date on which she was taken to have been notified, and therefore the last day for lodging the application for review was 12 October 2009.  The Tribunal stated that as the application was not received until 9 December 2020, it appeared to be out of time.  It advised the applicant, however, that the validity of the review application was a matter which must be determined by a Tribunal Member, and it invited the applicant to provide any comments she wished to have taken into account before a Tribunal Member made a final determination about the validity of the review application.

5. On 8 January 2020, the applicant’s agent submitted that the Tribunal had the power to extend the prescribed period in which to lodge a review application under s.347, pursuant to the decision in Brown v Minister for Home Affairs (no.2) [2018] FCA 1787. He also set out the applicant’s immigration history, asserting that she arrived in Australia to study Horticulture at Swan Hill International College in regional Victoria in April 2009 and had her student visa cancelled on 1 October 2009 even though she was working more than 20 hours per week as permitted during a semester break. The agent submitted that the applicant was ‘financial’ with her college at the time, and that she was not provided with an Indonesian interpreter, but a Malay interpreter, during the discussion with the Department officer. It was asserted that the visa cancellation had caused the applicant severe financial hardship and adversely affected her career prospects. The Tribunal was asked to extend the prescribed period on this basis, and on the basis that the applicant was not made aware of her review rights at the time of the cancellation decision.

6. As noted above, the Tribunal is satisfied that the Department cancellation decision and notification did clearly identify that the applicant had review rights, and specified the correct time frame in which they had to be exercised (7 working days).

7. The Tribunal acknowledges the agent’s submissions that the applicant did not have an Indonesian interpreter (but had instead a Malaysian interpreter) and that she did not read and/or understand the written advice specifying her review rights.  However, the effect of the ss.494B and 494C provisions is that receipt of Departmental correspondence is deemed to have occurred (even if it has not actually taken place), so long as the above provisions are complied with. The Tribunal finds that they were, as the Department handed the cancellation decision and notification to the applicant on 1 October 2009. There is no discretion within the Act or Regulations that enables the Tribunal to waive or extend the prescribed period in which a review application must be made to the Migration and Refugee Division of the Tribunal, even where there are compassionate and/or compelling circumstances in an applicant’s case: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228, 14 December 2018.

8. The Tribunal has considered the agent’s submissions. It is of the view that the Tribunal - in divisions other than the Migration and Refugee Division (MRD) - has the power to extend time limits.[1] However, the Full Federal Court in Beni 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.[2] Consequently, where a review application is lodged outside of the relevant prescribed period, the MRD of the Tribunal will not have jurisdiction.

   [1] Sections 29(7)-(10) of the Administrative Appeals Act 1975 (the AAT Act) permit the Tribunal to extend the time to apply for review, however, s.29 of the AAT Act does not apply to reviews in the MRD due to s.24Z of the AAT Act. Section 24Z(1) provides that, except for provisions specified in s.24Z(2), Part IV of the AAT Act (which contains s.29) does not apply in relation to a proceeding in the MRD. Section 24Z(2) states that sections 25 and 42 apply to a proceeding in the MRD.

   [2] 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. An alternative view 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 [2018] FCAFC 228 is a decision of the Full Court (bench of three judges) and expressly considered Brown and found it was wrongly decided, it is expected that courts are likely to follow Beni and find that the Tribunal has no power to extend time limits.

9. While the earlier case of Brown v Minister for Home Affairs(No.2) [2018] FCA 1787 held otherwise for a period, it was a decision of an inferior court and the Tribunal must follow the Full Federal Court decision in Beni. As the FCAFC in Beni clearly found that the reasoning in Brown was incorrect, it follows that the approach in Brown cannot stand, and that it cannot and should not be applied in retrospect, even for the period before which the FFC decision in Beni was made.

10. As the application for review was not received by the Tribunal until 9 December 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. This is legally the case despite the circumstances in which the applicant found herself.

11. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 October 2009: r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 12 October 2009.

12. As the application for review was not received by the Tribunal until 9 December 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

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

    Alison Mercer
    Member