Sivameena (Migration)

Sivameena (Migration) [2020] AATA 1818 (19 February 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Master Hrithik Sivameena

CASE NUMBER: 1907145

DIBP REFERENCE(S): CLF2019/890

MEMBER: Wendy Banfield

DATE: 19 February 2020

PLACE OF DECISION: Sydney

DECISION: The Tribunal does not have jurisdiction in this

matter.

Statement made on 19 February 2020 at 1:56pm

CATCHWORDS

MIGRATION – Child (Residence) (Class BT) visa – Subclass 802 (Child) – review application out of time – initial submissions did not include application form – fee not paid – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347
Migration Regulations 1994 (Cth), rr 2.55, 4.10

CASES

Liu v MIBP [2013] FCCA 2208
Russell v MHA [2019] FCAFC 110

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration on 21 February 2019 to refuse to grant a Child (Residence) (Class BT) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 13 March 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.
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.
The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 21 February 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.
On 13 March 2019 the Tribunal received emails on behalf of the applicant attaching documents relevant to an application for review. No Application for Review Form was received on that date. On 26 March 2019 the Tribunal received part payment for an application for review and an email claiming the application form had been sent on 13 March 2019. The email included zip files that contained separate scanned pages of an Application for Review Form and an Application for Fee Reduction. The PDF documents were dated 13 March 2019. Although submissions were made that the documents in the zip files were proof the application had been made in time, no evidence of a sent email from the relevant date to the Tribunal that included the application documents was provided.
The Tribunal’s IT Department made extensive searches the try and locate an email from 13 March 2019 containing an Application for Review Form but was unable to. Relevant to the applicant’s case, an application is ‘given to’ the Tribunal when it is physically delivered which, in respect of an electronic transmission, means that it must be capable of being retrieved by the Tribunal. In Liu v MIBP, [2013] FCCA 2208, the Court held an application was not ‘given to’ the Tribunal within the prescribed period because it was not received by the Tribunal’s facsimile server and was not capable of retrieval within that period. In Russell v MHA, [2019] FCAFC 110 in relation to a review application to the General Division of the AAT, the Court held that electronic communication only becomes capable of being retrieved by the addressee when it is electronically received by the addressee at the electronic address specified.
On 24 September 2019 the Tribunal wrote to the applicant inviting comment on the validity of the application for review. In response the applicant reiterated the application had been made in time and attached a general statement in support of the application for review.
The Tribunal finds that the applicant is taken to have been notified of the decision on 21 February 2019: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 14 March 2019.
As the application for review was not received by the Tribunal until 26 March 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.

Case Number 1907145 Page 2 of 3

DECISION

The Tribunal does not have jurisdiction in this matter.
Wendy Banfield
Member

Case Number 1907145 Page 3 of 3

The applicant, Sivameena, sought judicial review of a decision by the Administrative Appeals Tribunal (AAT) concerning her application for a Child (Residence) (Class BT) visa, Subclass 802. The primary issue before the Federal Circuit and Family Court of Australia, constituted by Banfield J, was whether the AAT had jurisdiction to consider Sivameena's application for review.

The court was required to determine whether Sivameena's application for review to the AAT was validly made within the prescribed time limits. Specifically, the court considered whether the absence of a completed application form and the non-payment of the prescribed fee at the time of lodging the initial submissions constituted a failure to make a valid application for review, thereby divesting the AAT of jurisdiction.

Banfield J reasoned that a valid application for review to the AAT requires both the lodgement of the prescribed application form and the payment of the prescribed fee. The court found that Sivameena's initial submissions, which did not include the application form and for which the fee was not paid, did not constitute a valid application for review. Consequently, the AAT lacked jurisdiction to consider the merits of her application.

The court ordered that the application for judicial review be dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established