MTL ROOFING GROUP PTY LTD (Migration)

[2020] AATA 4816

MTL ROOFING GROUP PTY LTD (Migration) [2020] AATA 4816 (13 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  MTL ROOFING GROUP PTY LTD

CASE NUMBER:  2007179

DIBP REFERENCE(S):  BCC2019/5529347 BCC20195529347

MEMBER:Bridget Cullen

DATE:13 November 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 13 November 2020 at 9.45am

CATCHWORDS

MIGRATION – application for approval of training nomination – application for review made more than 21 days after refusal notification taken to have been received – requirements for notification of refusal and statement of time limit for application for review – no power to extend time limit – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 66(2), 140GB, 347(1)(b), 494C

Migration Regulations 1994 (Cth), rr 2.55, 4.10

CASES  

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC64

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 18 December 2019, to refuse a training nomination (per s.140GB) under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 17 April 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 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 18 December 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The last day to apply for review was therefore 8 January 2020.

4. The Tribunal wrote to the applicant about the issue on 14 September 2020. It provided the applicant until 28 September 2020 to provide any response or comments on the validity of the application.

5. The Tribunal received a response from Mr Paul Sadler, from VisaFAQ (MARN 1382089), which the Tribunal has considered.

6. The submissions state:

   “The applicant appeals to rules of equity in consideration of acceptance of application for extension, that was submitted with the application. Noting the Full Court of the Federal Court has handed down a decision in the case of DFQ17 v Minister for Immigration and Border Protection that allows individuals and businesses whose merits review applications had been lodged to the AAT after the statutory deadline to be reconsidered in certain circumstances.”

7. The Tribunal is bound by legislation, namely those mentioned in Paragraph 2 of this decision, and cannot apply the ‘rules of equity’ to decide whether it has jurisdiction. It either has jurisdiction, or it does not. Whilst case law such as DFQ17 v Minister for Immigration and Border Protection assists the Tribunal in deciding when it has jurisdiction, it cannot decide to have jurisdiction on matters which it cannot lawfully have jurisdiction.

8. Further, the submissions state:

   “Unlike particulars to that case, where the refusal letter included an invitation for the appellant to apply for merits review including the timeframe within which the appellant could validly apply to the AAT for review. The refusal letter likewise did not specifically set out the deadline in absolute terms in a way a novice or a layman could adequately comprehend.

   Of further concern to the applicant is the notion of a formula using legislative provisions for determining the deadline, from the date the person was taken to have been notified. The statutory framework does not contemplate where the breakdown in communication has resulted in a delay for the applicant having been made aware of 1) refusal of application, and 2) the requirement to respond within the statutory timeframe provided. DFQ17 v Minister for Immigration and Border Protection considered this question, however the question of the recipient having received the notification was not addressed.”

9. For clarity, the notification of decision sent from the Department to the applicant, on page one, contains the following:

   “Review rights

   The Department cannot consider this application for approval of a nomination any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of this decision within 21 days after the day on which you are taken to have received this letter.

   As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

   The abovementioned time in which an application may be made to the AAT for merits review of this decision is prescribed by law and cannot be extended.”

10. The Tribunal notes that the review rights explain the timeframe which the applicant had to apply for the application for review, and further when the timeframe began was clearly stated as well. It is clear that the letter is distinguishable from DFQ17 as all relevant information was in one section under the heading review rights. Further, there is no breakdown of communication evident to the Tribunal that requires consideration, as the applicant was emailed the decision directly to the applicant’s own email address.

11. The representative further states:

    “I submit that a lack of clarity on the question of whether the applicant fails to comply with s 66(2) of the Migration Act 1958 is an open question enlivening the prospect of the Tribunal allowing for extension of time to apply. S 66(2) Notification of decision: requires that notification of a decision to refuse an application for a visa must determine if the applicant has a right to have the decision reviewed under Part 5 or 7, and state the time in which the application for review may be made. Setting the statutory time to apply aside, the applicant does have the right of review, however the unanswered question of ‘having received’ the notice of refusal and invitation to apply for merits review is thus clearly not laid out.

    I submit that the Minister still had not, at law, validly notified the appellant of the refusal. Taken to have received is not the same as actually received . It is a maxim in law that he who makes claim must provide evidence in support of such claims. I therefore request that you provide evidence in support of the claim that the applicant had in fact received the refusal notice in the timeframe the Minister has provided in the statutory framework.

    In the absence of evidence the applicant had received the notification within the statutory timeframe I submit the question is open as to whether s 66(2), is met, and that jurisdiction exists for application for merits review be validly accepted outside of time.”

12. The suggestion that the Tribunal is under an obligation to “provide evidence in support of the claim” is quite misguided. The Tribunal’s legislative remit is to conduct independent merits review. The Tribunal does not make “claims” in relation to parties’ cases. The use of this language implies that the Tribunal has an interest in the proceedings which come before it, which is does not. The Tribunal is neutral, and although the Tribunal does have inquisitorial powers, it does not participate in the evidence gathering processes of the parties that appear before it in the way that the representative suggests.

13. The Tribunal does have an obligation to act in a procedurally fair way, and the Tribunal has done that here by explaining to the applicant that the information before it is that the applicant was “notified of the decision by letter dated 18 December 2019 and dispatched by email”. If the applicant had information that suggested to the contrary, then the applicant could have responded by providing that information, which the Tribunal would have then considered. The applicant has not provided any evidence that is practically responsive to the issue before the Tribunal, which is whether the application for review was filed within the prescribed timeframes.

14. It is finally noted that when the application for review was lodged on 17 April 2020, the Tribunal received a “Application for Extension of Time for Making an Application for Review of Decision form”. For completeness, the Tribunal has considered the material inside the form, but notes that it is unable to accept applications for extension of time.

    “The reason for the application for the extension of time, results from the confusion i experienced with the wording of the time to apply, alongside with confusion of whether I had to wait for the Visa application for the Nominee to be determined. I have found the entire process to be confusing, whilst acting with the best of intentions. Our business is an essential service provider for Healthcare Construction. We have been working in a regional areas, with limited access to normal business services that have been adversely affected by Bushfires, Flooding of our site, and now with extremely demanding requests made from our Healthcare clients with respect the Covid-19 Pandemic, and an expectation to speed up our project completion.”

15. The Migration and Refugee Division has no power to extend time limits for application. Whilst other divisions of the Tribunal other than the Migration and Refugee Division have the power to extend time limits, pursuant to s.29(7)-(10) of the Administrative Appeals Tribunal Act 1975 (Cth), the case of Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 makes clear that those provisions do not extend to the Migration and Refugee Division, and confirmed that the Migration and Refugee Division does not have the power to extend time limits for applications.

16. It is for this reason that the form at the first paragraph does not state the Migration and Refugee Division in the list of divisions that the form is used for.

17. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 December 2019: s.494C of the Act and r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 8 January 2020.

18. As the application for review was not received by the Tribunal until 17 April 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

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

    Bridget Cullen
    Member