NWAKOR (Migration)

[2018] AATA 1946

NWAKOR (Migration) [2018] AATA 1946 (1 May 2018)

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:  1807399

DIBP REFERENCE(S):  BCC2016/2665673

MEMBER:Hugh Sanderson

DATE:1 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 May 2018 at 2:22pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visas – Subclass 187 Regional Sponsored Migration Scheme – Review application out of time – Application for Extension of Time for Making an Application for Review of a Decision – Communication of review rights

LEGISLATION
Administrative Appeals Tribunal Act 1975, ss 24Z, 29
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

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 19 March 2018. 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.

   Background

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. The prescribed period by which the applicant was required to apply for a review ended on 31 January 2018.

4. The review application was filed on 19 March 2018. The application was, correctly, stated to be filed in the Migration and Refugee Division of the AAT. On 2 April 2018 the applicant provided further documents to the Tribunal. This included submissions on why the application should be considered even though it was filed out of time and an Application for Extension of Time for Making an Application for Review of a Decision. It is noted that the first sentence in the instructions for that form states as follows:

   This form is for the use in the AAT’s General Division, Freedom of Information Division, National Disability Insurance Scheme Division, Security Division, Taxation & Commercial Division and Veterans’ Appeals Division.

5. It is noted that the form is not for use in the Migration and Refugee Division.

6. The Tribunal wrote to the applicant on 12 April 2018 noting that last day to file the review application from the Department’s decision was 31 January 2018. As the application was not received until 19 March 2018 it appeared the application was filed out of time. The applicant was invited to comment on or respond to this information. The applicant, through his agent, responded by providing the same submissions provided earlier.

7. In the submissions, the following was claimed:

   ·An extension of time for making an application to the Tribunal was able to be made pursuant to s.29(7) of the Administrative Appeals Tribunal Act 1975;

   ·Various submissions were made as to why the Tribunal should exercise its discretion to extend the time for making the application for a review of the Department’s decision; and

   ·The reason for the delay was the confusing manner in which the Department notified the applicant of the refusal of the visa application when they had previously advised the applicant of the refusal of the nomination application and a review application had been filed by the sponsor of the applicant.

   Consideration

8. Section 29(7) of the Administrative Appeals Tribunal Act 1975 is found in Part IV of that Act. Section 24Z of that Act sets out the scope of that Part and states as follows:

   (1)  Except for the provisions specified in subsection (2), this Part does not apply in relation to a proceeding in the Migration and Refugee Division.

   Note 1: For the conduct of proceedings in the Migration and Refugee Division, see Parts 5 and 7 of the Migration Act 1958.

   Note 2:       Enactments that authorise the making of applications for review to the Tribunal can add to, exclude or modify the operation of this Part.

   (2)  The following provisions of this Part apply in relation to a proceeding in the Migration and Refugee Division:

   (a)  section 25;

   (b)  section 42.

9. As the current application are proceedings in the Migration and Refugee Division, the provisions of s.29(7) of the Administrative Appeals Tribunal Act 1975 is not relevant. As is stated in that Act, the conduct of proceedings in the Migration and Refugee Division is controlled by the Migration Act 1958. As is stated above, 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. There is no discretion provided to the Tribunal to extend the time for the making by an applicant for a review of the Department’s decision.

10. The references made by the applicant’s agent to the provisions of the Administrative Appeals Tribunal Act 1975 and the decisions relied upon made in the General Division of the AAT are not relevant to the current application.

11. It was argued that the Department did not clearly and unambiguously communicate to the applicant their review rights when making the decision to refuse the visa application. The Tribunal does not accept this.

12. The applicant was represented by a registered migration agent at the time the Department issued its decision. The decision was properly sent by the Department to the email address of the authorised agent of the applicant. The covering letter provided with the decision states that the decision can be reviewed and that an application for a merits review of the decision must be given to the AAT within 21 calendar days after the day on which they are taken to have received the letter. It is clear that the decision made refusing the visa application was different and separate to the Department’s decision refusing the nomination application.

13. The Tribunal does not accept that the notification of the decision by the Department to the applicant was flawed in any way. The decision was correctly sent by the Department to the authorised migration agent at the address provided. The decision has been provided by the applicant to the Tribunal indicating that it was properly received by their agent. There is no information that the decision was not received by the applicant’s agent on their behalf on the date that it was sent by the Department. The decision was accompanied by an appropriate notification letter which sets out clearly the fact that the decision could be reviewed and the time limits imposed if a review application was to be filed. If the applicant’s agent failed to communicate to the applicant the fact that the Department had issued a decision refusing the visa application, no explanation has been provided why the applicant’s agent did not do so.

14. 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.

15. As the application for review was not received by the Tribunal until 19 March 2018 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

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

    Hugh Sanderson
    Member