Randhawa (Migration)

[2019] AATA 2019

Randhawa (Migration) [2019] AATA 2019 (26 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Harmandeep Kaur Randhawa
Mr Jagroop Singh Randhawa

CASE NUMBER:  1834341

DIBP REFERENCE(S):  BCC2018/1216788

MEMBER:Adrienne Millbank

DATE:26 April 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 26 April 2019 at 4:17pm

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visas – Subclass 500 (Student) – notified of the decision in accordance with the statutory requirements – application was lodged outside of the relevant prescribed period – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, r 4.10

CASES

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

Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787

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 2 May 2018 to refuse to grant Student (Temporary) (Class TU) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 22 November 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 2 May 2018 and dispatched by email. The applicant’s representative in a submission to the Tribunal dated 23 November 2018 claimed the applicant did not receive the emailed letter, as it was sent to an email address purporting to belong to the applicant, but in reality created by a former agent who conducted fraudulent business and did not pass the letter on to the applicant.

4. The email address that the emailed letter was sent to on 2 May 2018 is the email address provided in the application form ‘Application for a Student Visa’ lodged with the Department on 14 March 2018, as the applicant’s email address. The email address is also the address listed in the application form lodged on 14 March 2018 as the address for communication with the Department, including for notification of the outcome of the application. No evidence was provided and there is no information before the Tribunal to indicate that the applicant subsequently changed her contact details and provided to the Department a new email address.

5. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The applicant’s representative further submitted that following a decision by Justice Greenwood of the Federal Court of Australia (Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 below) the Tribunal has had power to extend the timeframe for appeal lodgements. The Tribunal notes that since 20 December 2018 the following advice on the AAT website has been available to applicants:

   In Brown v Minister for Home Affairs (No. 2) [2018] FCA 1787 (19 November 2018), the Federal Court decided that the AAT’s Migration and Refugee Division (MRD) had the power to extend the time limits for applying for review. The AAT decided to defer dealing with applications in the MRD that appeared to have been lodged outside the relevant time limit pending consideration of the judgment by a Full Court of the Federal Court.

   On 14 December 2018, the Full Court decided in Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 that Brown was wrongly decided and that the MRD does not have the power to extend the time limits. This is consistent with the previous position that extensions of time cannot be granted in the MRD. The AAT will resume dealing with applications in the MRD that appear to have been lodged outside the relevant time limit.

   MRD applicants should lodge their review applications within the relevant time limits which are usually referred to in the letter from the Department containing the notice of the decision.

7. The Tribunal finds that the time limit within which to lodge an application for review is 21 days. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 May 2018 in accordance with s.494C of the Act. Therefore the prescribed period to apply for review ended on 23 May 2018.

8. As the application for review was not received by the Tribunal until 22 November 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

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

   Adrienne Millbank

   
   

   Member