Matthews (Migration)

[2018] AATA 2129

Matthews (Migration) [2018] AATA 2129 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Graeme Sean Matthews

CASE NUMBER:  1719470

DIBP REFERENCE(S):  CLF2017/13094

MEMBER:Nicole Burns

DATE:14 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 14 May 2018 at 4:39pm

CATCHWORDS
Migration – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – Refusal notification to the authorised recipient – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 347, 494D
Migration Regulations 1994, rr 2.55, 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 6 April 2017, to refuse to grant a Special Category (Temporary) (Class TY) (Subclass 444) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 25 August 2017.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 6 April 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal wrote to the applicant on 30 August 2017 inviting his comments on the validity of the review application as it appeared to have been lodged out of time.  The applicant’s representative provided a letter dated 9 September 2017 to the Tribunal in which he sets out the history of the matter (and related matters), including various correspondence and advice from different Departmental officers from when the applicant, who is a New Zealand citizen, returned to Australia from visiting New Zealand on 1 February 2017 and was refused entry into Australia and given a border visa (Subclass 773) for one entry only to the date of the letter.  Copies of various email and other correspondence from the Department was attached in respect to the Subclass 444 visa application and bridging visa application, among other things.  The representative submitted the review application lodged on 25 August 2017 is valid for the following reasons:

   ·Having sent an acknowledgement of the applicant’s Subclass 444 visa application to the applicant’s agent, the Department is also bound to send the refusal notification dated 6 April 2017 to the agent, which they failed to do.  Therefore, it is submitted, the time to review the application did not begin.

   ·The Department acknowledged that the refusal notice dated 6 April 2017 should have been served on the agent and they did not.

   ·The failure by the Department to issue a ‘fresh’ refusal of the Subclass 444 visa application as promised in a telephone conversation on 30 June 2017. 

6. The Tribunal has considered these submissions and whether the applicant was correctly notified of the Subclass 444 refusal decision.  The matter turns on whether the applicant’s agent was the authorised recipient at the time of the Subclass 444 refusal decision on 6 April 2017. 

7. There is evidence on the Departmental file that the applicant’s representative submitted a Form 956[1] advising of his appointment as the applicant’s migration agent and authorised recipient which the Department received on 25 March 2017, before the decision to refuse to grant the applicant the visa on 6 April 2017. However, in that form in answer to the question about the type of application for which the agent is providing assistance it states “BVA” lodged on “01-Mar-2017”. This answer, combined with the fact that the Form 956 accompanied a BVA application, leads the Tribunal to conclude that the notification of the authorised recipient was in respect of a bridging visa A lodged on 1 March 2017 not with respect to broader migration matters. The Tribunal therefore finds that the applicant was notified correctly of the Subclass 444 refusal decision, as he had not appointed an authorised recipient under s.494D of the Act and the decision was sent to the last email address provided to the Minister for the purposes of receiving documents.

   [1] ‘Advice by a migration agent/exempt person of providing immigration assistance’

8. The Tribunal finds that in accordance with r.2.55 of the Regulations, the applicant is taken to have been notified of the decision on 6 April 2017. Therefore the prescribed period within which the review application could be made ended on 27 April 2017. As the application for review was not received by the Tribunal until 25 August 2017 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

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

   Nicole Burns
   Member