Singh (Migration)

[2017] AATA 1773

Singh (Migration) [2017] AATA 1773 (19 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Palwinder Singh

CASE NUMBER:  1709318

DIBP REFERENCE(S):  BCC2016/2861900

MEMBER:Wan Shum

DATE:19 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2017 at 10:40am

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Review application out of time – A reasonable opportunity to represent applicant’s case

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 39(1)

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulation 1994, r 4.10

CASES

Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634

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 6 April 2017, to refuse to grant an Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 28 April 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 6 April 2017 and dispatched by email on the same day. The last day for lodging the application for review was therefore 27 April 2017 but the application was not received until 28 April 2017. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. A Tribunal officer wrote to the applicant regarding the application, stating the view that the application did not appear to be valid as it was not lodged within the relevant time limit.

6. The representative responded stating that, while the prescribed limit under the r.4.10(1)(a) of the Regulations is to apply for review within 21 days after the day when the refusal notice is received, the maximum time that can be prescribed under s.347(1)(b) of the Act is 28 days. The representative referred to s.39(1) of the Administrative Appeals Tribunal Act 1975, stating that the AAT must give every review applicant a reasonable opportunity to represent their case. It was submitted that the application was not out of time as the 28 day period under the Act takes precedence over the 21 day period under the Regulations. This was said to be supported by Re Drake and Minister for Immigration and Ethnic Affairs(No 2) (1979) 2 ALD 634, 636 and reference was made to the finding that the Tribunal should correctly apply the law.

7. The Tribunal has considered the submission. However, the prescribed periods for applying for review are clearly set out in s.347(1)(b) of the Act and r.4.10 of the Regulations. The 28 days referred to under s.347(1)(b)(i) for review of certain Part 5 – reviewable decisions sets out the maximum period of time which may be prescribed. The prescribed period under the Regulations is 21 days. As the prescribed period of 21 days is a shorter period than that set out in the Act, it is a lawful regulation and must be complied with for lodging an application for review of a decision to refuse to grant an Employer Nomination (Permanent) visa. The terms of the Act and Regulations are strict and clear.

8. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 6 April 2017. Therefore the prescribed period within which the review application could be made ended on 27 April 2017 and not 4 May 2017 as claimed. As the application for review was not received by the Tribunal until 28 April 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

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

   Wan Shum
   Member