The Face Specialist Pty Ltd (Migration)

[2019] AATA 53

The Face Specialist Pty Ltd (Migration) [2019] AATA 53 (4 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Face Specialist Pty Ltd[1]

[1] The applicant provided the trading name Browco on the on-line application form. ABN Lookup and the applicant’s submissions confirm that this refers to the same entity.

CASE NUMBER:  1831185

DIBP REFERENCES:  BCC2017/3824839

MEMBER:James Silva

DATE:4 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 January 2019 at 1:20pm

CATCHWORDS
MIGRATION – nomination of an occupation (employer nomination) – review application out of time – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

CASES

Beni v MIBP [2018] FCAFC 228

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 2 October 2018, to refuse an application for approval of a Temporary Work (Skilled) nomination under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 24 October 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 2 October 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 2 October 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 23 October 2018.

4. The Tribunal wrote to the applicant on 20 November 2018, advising of its preliminary view that the application was not valid, as it was not lodged within the prescribed period. The Tribunal received no response to its letter.

5. The Tribunal notes, however, that the review applicant (Ms Kylie Elms, Director, The Face Specialist Pty Ltd) addressed some relevant matters in a letter dated 23 October 2018, although the body of the text strongly suggests that it was in fact prepared the following day. The letter indicates the following:

   §  The review applicant was aware that the final date for lodgement of the review application was 23 October 2018.

   §  A staff member attempted to lodge the application late on 23 October 2018. There was some initial delay due to local internet outages. When the staff member finally uploaded the documents, she realised that there was a prescribed fee to pay. As it was late in the day, she was unable to obtain authorisation for use of the company credit card to pay the fee. The Director authorised the payment early on 24 October 2018.

   §  Ms Elms contacted the Tribunal on 24 October 2018 to confirm that she could still proceed to submit the application, and was advised that this was possible (without any comment relating to the validity of the application).

   §  She requests that the Tribunal take the above circumstances into account.

6. The Full Federal Court recently determined in Beni v MIBP[2] that the Tribunal does not have the power to extend time for making an application for review a matter before the Tribunal’s Migration and Review Division. As a result, review applications must be lodged within the timeframes prescribed in the Migration Regulations 1994 in order to be valid. The Tribunal does not have any discretion to accept late applications.  

   [2] Beni v MIBP [2018] FCAFC 228

7. As the application for review was not received by the Tribunal until 24 October 2018 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

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

   James Silva
   Member