NWAKOR (Migration)

[2021] AATA 2368

NWAKOR (Migration) [2021] AATA 2368 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CHINEDU VITALIS NWAKOR
Mrs AMUCHE EUPHEMIA NWAKOR
Master BRIAN KENECHUKWU NWAKOR
Miss BRENDA SOMTOCHUKWU NWAKOR

CASE NUMBER:  1917432

DIBP REFERENCE(S):  BCC2016/2665673

MEMBER:Bridget Cullen

DATE:3 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 3 March 2021 at 10.05am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – review application out of time – registry indicated that there appeared to be jurisdiction – time of decision requirements – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

CASES

BMY18 v Minister for Home Affairs [2019] FCAFC 189
DFQ17 v Minister for Immigration [2019] FCAFC 64

Singh v Minister for Immigration and Border Protection [2020] FCAFC 31

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 10 January 2018 to refuse to grant Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 1 July 2019. 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 10 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal originally wrote to the applicant on 9 October 2019 in relation to the issue of jurisdiction, identifying concerns that the application was lodged out of time. The applicants responded to that letter on 23 October 2019, again on 28 October 2019, and then again on 1 November 2019.

5. As a result of the case law at that point in time, namely BMY18 v Minister for Home Affairs [2019] FCAFC 189, a Tribunal registry officer contacted the applicant on 23 December 2019, via their representative. The registry officer advised that the matter had been re-assessed in light of BMY18, and it appeared that the Tribunal had jurisdiction to accept the review application. Finally, the registry officer advised that the matter would await allocation to a Member.

6. On 6 March 2020, the judgement in the matter of Singh v Minister for Immigration and Border Protection [2020] FCAFC 31 was handed down. The applicants’ matter was then constituted, to this Member, on 29 July 2020. In light of Singh, the Tribunal re-assessed the applications for review, and wrote to the applicant on 18 August 2020 in relation to the issue of jurisdiction, being that the application was lodged out of time.

7. The Tribunal received a preliminary response from the applicants on 31 August 2020, requesting a two-week extension within which to provide more detailed submissions. The Tribunal approved this request, and then received further submissions from the applicants on 16 September 2020.

8. The Tribunal has considered the applicants’ submissions, which primarily focus on their interpretation of the caselaw mentioned herein. The applicants submit that the decision in DFQ17 v Minister for Immigration [2019] FCAFC 64, despite the more recent decisions in Singh and BMY18, supports their position that notification was unclear. Further, the applicants argue that the Tribunal is estopped from now making a decision that it does not have jurisdiction, in light of the earlier advice from the registry officer that the matter would await constitution.

9. The Tribunal notes that no Member has previously made a finding that the Tribunal had jurisdiction to hear the matter. The reference to an alleged 23 December 2019 “decision” by the Tribunal, as set out in the representative’s submissions, is based on an email sent by the Tribunal’s registry officer on 23 December 2019, which stated the following:

   “On 9 October 2019, the Tribunal sent a letter inviting you to comment on the validity of your application. The Tribunal had formed the preliminary view that your application was not a valid application as it was not lodged within the relevant time period.

   Recent court judgments, including DFQ17 v Minister for Immigration ]2019] FCAFC 64 (18 April 2019) and BMY18 v Minister for Home Affairs ]2019] FCAFC 189 (31 October 2019), identified problems with the validity of notifications letter issued by the Department of Home Affairs for failing to clearly state the time period within which an application for review must be made.

   Your case has been re-assessed in light of this judgment and it would appear that the Tribunal has jurisdiction to accept your review application.

   Your application for review will now await allocation to a Member.”

10. An email from the Tribunal’s registry officer is not a “decision” for purposes of determining whether jurisdiction exists. Once the applicants’ matter had been allocated, the Tribunal must again look to the live issue of jurisdiction. In this respect, the Tribunal must have regard to the law as it exists at the time of its decision. The Tribunal further notes that the text of the email from the registry officer indicated that there appeared to be jurisdiction for the Tribunal to accept the review application. The Tribunal registry officer is not delegated with the authority to make a decision, and this is an assessment by them only, which is not binding on a Member who must independently make that determination with the authority vested in them to do so. The Tribunal finds that there is no substance to the estoppel argument raised by the applicants’ representative.

11. The Tribunal also finds that both BMY18 and Singh are decisions of the Full Court of the Federal Court of Australia, which are binding on it. Whilst the Tribunal has some level of sympathy for the applicants that their case was not finalised before the decision of Singh was handed down, this does not alter the law which the Tribunal must follow at the time of this decision, in making a decision in relation to whether it has jurisdiction to review the decision.

12. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 January 2018: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 31 January 2018.

13. As the application for review was not received by the Tribunal until 1 July 2019, 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.

    Bridget Cullen
    Member