Nian (Migration)

[2017] AATA 2324

Nian (Migration) [2017] AATA 2324 (16 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ying Nian
Mr Nianyu Lin
Mr Nianhang Lin

CASE NUMBER:  1720559

DIBP REFERENCE(S):  BCC2016/1363787 PNJ

MEMBER:R. Skaros

DATE:16 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2017 at 9:15am

CATCHWORDS

Migration – Business Skills (Residence)(Class DF) visa – No jurisdiction – Out of time – Delay due to Department non-response to reconsider decision – Refusal notification sent to agent’s email on same date

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 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 29 June 2017, to refuse to grant Business Skills (Residence) (Class DF) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 5 September 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 29 June 2017 and dispatched by email.

5. In the review application form the date of decision was indicated as 29 June 2017 and the date of notification, by email, was also indicated as 29 June 2017. The Tribunal also received a completed Application for Extension of Time for Making an Application for Review. Although an extension of time application cannot be made in respect of migration decisions, information in that application was relevant in that it indicated that the applicant had received the decision she wanted reviewed on 29 June 2017 and that the reason for applying for review of the decision out of time is due to the Department’s non-response to a request to reconsider the decision.

6. On 20 September 2017 the Tribunal wrote to the Department requesting further information regarding the notification of decision, proof of dispatch and evidence of the authorised address for correspondence.

7. On 22 September 2017 the Tribunal received a response from the Department which included supporting information. Relevantly, the Department advised that the notification of refusal dated 29 June 2017 was sent by email to the authorised migration agent’s email: [email protected]. A printout of the Department’s enterprise correspondence portal was provided indicating that the following documents were sent to the representative’s email on 29 June 2017: Cover Letter (migration agent), IMMI Refusal Notification and Decision Record – Nian-Ying. Also provided was a copy of form 956, appointment of an agent, indicating [email protected] as the email for correspondence. The Department advised that there was no indication on the Department’s records that the services of the migration agent had ended by the time the decision was notified.

8. On the material before it, the Tribunal formed the view that the applicants were notified of the decision on 29 June 2017 in accordance with the statutory requirements.  On 28 September 2017 the Tribunal wrote to the applicants inviting them to comment on the validity of the application for review.

9. On 11 October 2017 the Tribunal received submissions from the applicants’ current representative. The representative submitted that the decision is reviewable and that the time for lodgement of an application with the Tribunal starts when the applicant receives the notice of decision and ends at the end for 21 days after the day on which the notice is received. It was submitted that the notice was received on 4 September 2017 as testified by the previous representative Ms Kay Hui Ye. It was submitted that the review application was lodged on 5 September 2017 being only one day after the decision was received and is therefore a valid application for review.

10. In support of the submissions the representative provided a printout of correspondence to the Department from the former agent dated 11 September 2017 in which the agent states that she only received the refusal letter on 4 September by email and enquiring as to whether the further information had been assessed and if the decision could be reconsidered. The email includes, what appears to be an email from the Department sent to “Kay Hui Ye” on 4 September 2017 regarding the refusal notification. Also provided was email correspondence between the Department’s case officer and the former agent regarding information and documents dated in May/June 2017. Also provided was an email from the former agent to the Department dated 7 August 2017 enclosing documents in support of the visa application and a statutory declaration from the former representative. In the statutory declaration, the former representative stated that she did not receive the decision until 4 September 2017. She stated that an application for review was lodged 5 September in which she noted that the notification of refusal was dated 29 June 2017 and that she was not informed that the applicant’s visa had been refused when she emailed further information to the Department in support of the application on 7 August 2017. She stated that she made an enquiry with the Department by email on 11 September 2017 regarding the decision and they had advised that the decision was made on 29 June 2017 and that no further consideration of the decision could be made.

11. The Tribunal has had regard to all of the information and submissions before it. The Tribunal notes that in there was no indication on the review application that the decision record was received on 4 September 2017 as claimed. Furthermore, the explanation provided on the Extension of Time Application indicates that the delay was due to the Department not responding to a request to reconsider the decision and it was indicated at Section 2 of that form that the applicant received the decision she wants reviewed on 29 June 2017. The information provided at the time of application for review suggests that decision record was received on 29 June 2017.

12. The information provided from the former agent, particularly the copy of an email claiming to be from the Department to “Kay Hui Ye” on 4 September 2017, regarding the refusal notification, is not consistent with the Department’s records. The documents and information received from the Department, which the Tribunal considers to be reliable, indicates that the Department sent to the applicant the refusal notification and decision record by email on 29 June 2017. In considering the evidence before it, the Tribunal prefers the evidence received from the Department over the evidence provided by the applicant. The Tribunal is satisfied that the Department sent to the applicant, by email to the authorised representative’s nominated email address, the refusal notification and decision record on 29 June 2017.

13. In light of the above, the Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 29 June 2017. Therefore the prescribed period within which the review application could be made ended on 20 July 2017. As the application for review was not received by the Tribunal until 5 September 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

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

    R. Skaros
    Member