The Trustee For Repose Hotels Unit Trust (Migration)

[2017] AATA 1725

The Trustee For Repose Hotels Unit Trust (Migration) [2017] AATA 1725 (21 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  The Trustee For Repose Hotels Unit Trust

CASE NUMBER:  1716435

DIBP REFERENCE(S):  BCC2016/3386235 BCC2016/3724647

MEMBER:Danica Buljan

DATE:21 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 21 August 2017 at 10:31am

CATCHWORDS

Migration – Employer nomination – Application for review lodged out of time

LEGISLATION

Migration Act 1958, ss 140GB, 347, 494C

Migration Regulations 1994, r.2.72, 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 4 July 2017, to refuse to approve the applicant’s nomination under section 140GB of the Migration Act 1958 (‘the Act’) and regulation 2.72 of the Migration Regulations 1994 (‘the Regulations’).

2. The review application was lodged with the Tribunal on 28 July 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 paragraph 347(1)(b) of the Act and regulation 4.10 of 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 4 July 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 4 August 2017 the Tribunal invited the applicant to comment upon the fact that its application for review had been lodged after the prescribed period had ended and that, therefore, its application appeared to be out of time. The applicant was invited to provide its comments to the Tribunal within 14 days of receiving this letter, namely by 18 August 2017. On 7 August 2017 the applicant’s representative responded that the application for review had been lodged by the applicant without his knowledge or consent to use his contact details. As a result, the representative requested that he be withdrawn as the representative for this matter. As a result, on 7 August 2017 the Tribunal contacted the applicant’s authorised officer, Mr Sangwan, of this development.

6. On 17 August 2017 Mr Sangwan confirmed in writing that the applicant had lodged the application for review on 28 July 2017. He also advised that this had occurred due to issues related to the applicant changing its representative. However, Mr Sangwan requested that the Tribunal consider the applicant for review to be valid because there was a serious shortage of skilled labour in regional Victoria (Traralgon) and the occupation of ‘Chef’ was listed on the relevant departmental list setting out occupations in short supply.

7. The Tribunal finds that in accordance with section 494C of the Act, the applicant is taken to have been notified of the decision on 4 July 2017. The Tribunal notes that it cannot alter the prescribed period set out in the legislation for the lodgment of an application for review.

8. Therefore the prescribed period within which the review application could be made ended on 25 July 2017. As the application for review was not received by the Tribunal until 28 July 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.

   Danica Buljan
   Member