Singh (Migration)

[2017] AATA 1704

Singh (Migration) [2017] AATA 1704 (19 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaswinderpal Singh

CASE NUMBER:  1712848

DIBP REFERENCE(S):  BCC2016/1089695

MEMBER:Alison Mercer

DATE:19 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 19 July 2017 at 5:29pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Request for extension of time – Late lodgement of review application

LEGISLATION

Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, r. 4.10

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 24 May 2017, to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 17 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 24 May 2017 and dispatched by email to the email address he nominated for correspondence. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 22 June 2017, the Tribunal wrote to the applicant via his registered migration agent and authorised recipient for correspondence to invite him to comment on whether his review application had been validly lodged. The Tribunal advised that it had formed a preliminary view that the review application had been lodged outside the prescribed timeframe for doing so. The Tribunal noted that the time limit for lodgment was 21 days from the date on which the applicant was taken to have been notified of the primary decision. As he was notified by email on the date that the decision was made, on 24 May 2017, this was the date from which the 21 day period ran.  Therefore, the last date for lodgment of the review application was 14 June 2017 but the review application was not received by the Tribunal until 17 June 2017 and thus appeared to have been lodged out of time.  The applicant was invited to provide any comments on the validity of his review application by 6 July 2017 and was advised that any comments received would be referred to a Tribunal Member, who would make a determination about whether the review application had been validly lodged or not.

6. On 5 July 2017, the Tribunal received a response from the applicant’s agent, who stated that the applicant was only notified of the refusal decision by his former migration agent 7 days after the actual decision date, and that this agent advised the applicant that he had 28 days to lodge a review application. The current agent stated that the applicant also thought that his employer had lodged a review application, and that when the applicant approached the current agent, he was short of money and time.  However, he managed to find the review application fee and they lodged the review application.  The current agent requested that the Tribunal accept the review application, as a review application had been lodged in relation to the associated nomination refusal decision and was pending with the Tribunal.  In the alternative, the current agent asked that the applicant be granted an extension of time until the nomination review was determined. He emphasised that the applicant was innocent and had a right to a fair review.   

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 24 May 2017 (regardless of whether he actually received it from his agent and nominated recipient for correspondence at a later date). Therefore, the prescribed period within which the review application could be made ended on 14 June 2017. As the application for review was not received by the Tribunal until 17 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. Nor does the Tribunal have any discretion to extend the period for lodgment of a review application. Further it considers that it would not be reasonable for it to defer making a decision on the validity of this matter until after a decision on the nomination review application is made, given that that case has not yet been constituted to a Tribunal Member and the time frame for this occurring and resolution of that matter is unknown.

   DECISION

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

   Alison Mercer
   Member