SHANDONG BROTHERS PTY LTD (Migration)

[2017] AATA 1701

SHANDONG BROTHERS PTY LTD (Migration) [2017] AATA 1701 (2 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  SHANDONG BROTHERS PTY LTD

CASE NUMBER:  1712528

DIBP REFERENCE(S):  BCC2016/3883845

MEMBER:Alan McMurran

DATE:2 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 02 August 2017 at 6:15pm

CATCHWORDS

Migration – Employer Nomination – Application review lodged out of time

LEGISLATION

Migration Act 1958, ss 347, 494C

Migration Regulations 1994, r. 4.10, r.5.19

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 17 May 2017, to refuse a nomination application which does not meet subregulation 5.19(3) or 5.19(4) of the Regulations under the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 13 June 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 17 May 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The letter sent by email states clearly that the applicant is entitled to make application to the Tribunal for a merits review of the decision within 21 days after the day on which the applicant is taken to have received the letter. Where the letter so advising is despatched by email, it is taken to have been received at the end of the day it was transmitted, being 17 May 2017.

6. A natural justice letter was sent to the review applicant on 10 July 2017, informing the applicant that the application was not received by the Tribunal until 13 June 2017, and appears to be out of time, as the last day for lodging a review application was on 7 June 2017. The review applicant was asked to make any comments on whether a valid application was made and before the matter was determined.

7. A response was received by the Tribunal by email from the review applicant attaching a letter dated 20 July 2017, and signed by Yuhan Chang. The letter was recorded on the Tribunal’s file as received on 21 July 2017 at 17.59.

8. The letter states that Mr Chang was absent on annual leave from 15 May 2017 to 9 June 2017, returning to work on 12 June 2017. Mr Chang says he is the owner of the business (of the sponsor) and the nomination is crucial to the operation of the business. He asks the Tribunal to “validate’ the application.

9. The Tribunal notes the response, but in view of the Tribunal’s letter of 17 May 2017, which very clearly states the time period, does not accept that it can “validate” the application for review. The Tribunal is unable pursuant to the Act and Regulations to extend the time for lodgement of an application beyond the time specified.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 17 May 2017. Therefore the prescribed period within which the review application could be made ended on 7 June 2017. As the application for review was not received by the Tribunal until 13 June 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

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

    Alan McMurran
    Member