Sharma (Migration)

[2020] AATA 1990

Sharma (Migration) [2020] AATA 1990 (10 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Sharma

CASE NUMBER:  1934609

DIBP REFERENCE(S):  BCC2019/5231442

MEMBER:Nathan Goetz

DATE:10 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 March 2020 at 5:54pm

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application for review lodged out of time – validity of notification of decision – access to email address – Tribunal’s power to extend prescribed time limits – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 347
Migration Regulations 1994 (Cth), rr 2.55, 4.10

CASES
Beni v MIBP [2018] FCAFC 228
Brown v MHA (No. 2) [2018] FCA 1787
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64

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 to cancel the applicant’s Partner (Temporary) (Class UK) visa under the Migration Act 1958 (the Act).

2. The applicant was granted the visa on 8 December 2018. On 15 November 2019 the delegate provided the applicant with a Notification of Intention to Consider Cancellation (NOICC) of his partner visa. The ground for cancellation was that the presence of the visa holder is or may be, or would or might be, a risk to the health and safety of an individual or individuals: s.116(1)(e)(ii). In short, the notification detailed information that the applicant had been charged by NSW police with a number of criminal offences committed against his de facto partner. The applicant was invited to respond to the information and address whether the ground for cancellation existed, or whether there were any reasons that the visa should not be cancelled. The applicant did not respond to the NOICC.

3. On 26 November 2019 the delegate cancelled the visa. The notification and decision record were sent to the applicant that day via email.

4. On 6 December 2019 the applicant applied to the Tribunal for a review of the cancellation decision.

5. On 20 December 2019 the Tribunal wrote to the applicant and raised with him the Tribunal’s preliminary view that his review application was invalid because it was not lodged within the prescribed timeframes. The Tribunal invited the applicant to comment on the validity of the review application.

6. On 6 January 2020 the applicant responded to the Tribunal with the following:

   ·     A 17 page written response

   ·     A blue ‘Notice of Listing’ document which reads that the applicant was to appear at the Newcastle Local Court on 19 February 2020 on bail.

   ·     A transcript of the applicant’s interview with police

   ·     The brief of evidence against the applicant.

   ·     A transcript of the complainant’s interview with police.

7. The amount of documentation submitted by the applicant was unnecessary. The only issue before the Tribunal was whether the application for review was filed within the prescribed timeframe.

8. From the abundance of material supplied by the applicant, the Tribunal is able to ascertain the following information that is relevant as to whether the Tribunal has jurisdiction to review the matter.

9. First, the applicant noted the decision of DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 which he said ‘allows individuals and businesses whose merits review applications had been lodged to the AAT after the statutory deadline to be reconsidered in some circumstances’. The submission went on to say that in that case, the Minister had not validly notified the applicant of the refusal which means that the merits review application in that case had not been lodged outside the prescribed statutory timeframe for review.

10. The applicant wrote that he ‘believed that the notification in this (that is, his) instance be also deemed not fully valid which consequently also means that the merits review application had not been lodged late.’ He did not explain to the Tribunal how or why he had not been validly notified but confirmed that he understood that he had a 7 working day time limit to lodge his review, and that he was notified of the refusal decision on 26 November 2019 by email.

11. The Tribunal has looked at the notification letter and it provides the following information. It instructs that his visa was cancelled on 26 November 2019. The letter then provides the following:

    Review Rights

    As your visa has been cancelled, it is no longer in effect. Unless you hold, or are granted, another visa, you are an unlawful non-citizen, and may be detained and removed from Australia.

    Information for unlawful non-citizens can be found at After reading this information, should you have further enquiries on status resolution please call 1300 853 773 to discuss your options.

    The decision to cancel your visa can be reviewed.

    You may make an application for merits review of this cancellation decision with the Administrative Appeals Tribunal (AAT).

    An application for merits review of this decision must be given to the AAT within the prescribed timeframe. The prescribed timeframe commences when you are taken to have received this letter and ends at the end of seven (7) working days after the day on which you are taken to have received this letter.

    As this letter was sent to you by email, you are taken to have received this letter at the end of the day it was transmitted.

12. Having considered the notification letter, it could not be argued that the notification letter was ‘piecemeal, entirely obscure and essentially incomprehensible’ as to result in the notification being invalid. A fair reading of the notification letter makes the prescribe timeframe for review tolerably clear. The Tribunal is not satisfied that the applicant was not properly notified of the cancellation decision.

13. The Tribunal also rejects the applicant’s submission that because he did not access his email address until 5 December 2019 that this somehow invalidates the notification of the cancellation decision, or because police advised him that ‘if any important communication happens, it will be received by post or in person’ and that ‘police will communicate with the immigration department and will take care of visa matters’. The notification and cancellation decision were provided to the applicant’s email address that was last known to the Minister. There is nothing before the Tribunal to suggest that the applicant advised the Department to no longer send correspondence to him by email by completing Form 929 to remove his email address as a means of contact.

14. The Tribunal next turns to the applicant’s submission that there are ‘compelling and compassionate circumstances around my case which require that the member accept my case for justice to be able to prevail.’ The applicant then detailed that he had been a victim of domestic violence, and addressed, at some length, the reasons why his partner visa should not have been cancelled. The Tribunal understands the applicant to be saying that because of his circumstances, the Tribunal should allow the applicant’s review to proceed despite it not being lodged within the prescribed timeframe. The Tribunal rejects that argument for the following reason:

15. On 14 December 2018, the Full Federal Court handed down a judgment (Beni v MIBP [2018] FCAFC 228) which found that the MR Division of the Tribunal does not have the power to extend the time in which an applicant may make a review application to the Tribunal. This judgment restores the long held position that the prescribed time limits for making a review application to the MR Division cannot be extended. It overturns the judgment of Brown v MHA (No. 2) [2018] FCA 1787.

16. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

17. 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 7 working days after the applicant was notified of the decision in accordance with the statutory requirements.

18. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 26 November 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

19. The Tribunal finds that the applicant is taken to have been notified of the decision on 26 November 2019: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 5 December 2019.

20. As the application for review was not received by the Tribunal until 6 December 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

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

    Nathan Goetz
    Member