McGovern (Migration)

[2024] AATA 2349

McGovern (Migration) [2024] AATA 2349 (25 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Diarmaid Vincent McGovern

REPRESENTATIVE:  Mr Nabeel Lang (MARN: 0601921)

CASE NUMBER:  2408617

HOME AFFAIRS REFERENCE(S):          BCC2023/4678734

MEMBER:Sheridan Aster

DATE:25 June 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 25 June 2024 at 5:14pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) visa – Subclass 186 - Employer Nomination Scheme – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 66(2), 347, 494C, 501CA(3)
Migration Regulations 1994, r 4.10

CASES

MIBP v EFX17 (2021) 271 CLR 112
Sandor v MICMA [2023] FCA 434

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 Home Affairs on 27 March 2024 to refuse to grant an Employer Nomination (Permanent) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 18 April 2024. 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 reg 4.10 of the Migration Regulations 1994 (Cth) (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 27 March 2024, which was dispatched by email to the applicant’s representative. The Tribunal finds that the applicant is taken to have been notified of the decision on that date: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 17 April 2024. The application for review was made one day late.

4. On 18 April 2024, the Tribunal invited the applicant to comment on the validity of the application for review. On 2 May 2024, the applicant responded to the invitation via his representative. It was submitted that the notification of decision letter sent by the Department did not comply with s 66(2) of the Act. As a result, the time limit to apply for review had not commenced.

5. Section 66(2)(d) of the Act stipulates that if the applicant has a right to have the decision reviewed, the notification must state:

   i.that the decision can be reviewed

   ii.the time in which the application for review may be made

   iii.who can apply for the review

   iv.where the application for review can be made.

6. Having reviewed the notification letter, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The notification clearly states under one heading that the decision can be reviewed, the date that the applicant was deemed to have been notified of the decision and the time within which he had to apply for review. The notification also notes that the time in which the review application may be made is calculated from when the authorised recipient is taken to have received it. The information about the time in which the review application may be made is set out in the notification in a complete and clear manner. The notification then sets out where the application for review can be made.

7. The representative submitted that the notification was inadequate in the same way as the notification in MIBP v EFX17 (2021) 271 CLR 112, which did not meet the requirements of s 501CA(3) of the Act. The Tribunal notes that s 501CA(3) relates to the notification of persons serving a sentence of imprisonment. The requirements are not the same as those applicable in the current case. Further, the notice in MIBP v EFX71 incorrectly stated that the former visa holder was taken to have received the notice at the end of the day the email was transmitted (when the notice was in fact handed to him while he was in prison).

8. The Tribunal does not accept the representative’s argument that the notification was invalid in the same way as in Sandor v MICMA. In that case, the Court held that a notification letter was incomplete and unclear because it did not explain that the appellant was taken to have received it at the end of the day it was transmitted to their authorised recipient. The notification in the current matter states: “You have appointed an authorised recipient and are taken to have received this letter at the end of the day it was transmitted to your authorised recipient.”

9. As the application for review was not received by the Tribunal until 18 April 2024 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

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

    Sheridan Aster
    Member