Zeng (Migration)

[2019] AATA 4667

Zeng (Migration) [2019] AATA 4667 (17 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Danmei Zeng

CASE NUMBER:  1914150

DIBP REFERENCE(S):  BCC2018/4556515

MEMBER:David Barker

DATE:17 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 October 2019 at 12:36pm

CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) – application for review lodged out of time –  Department’s letter complied with legislative requirements and clearly conveyed mandatory information – no response to Tribunal communication – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 65, 66(2)(d)(ii), 347(1)(b)
Migration Regulations 1994 (Cth), rr 2.55, 4.10

CASES

DFQ17 v MIBP [2019] FCAFC 64

Ali v MHA [2019] FCA 1102

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 8 May 2019 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 4 June 2019. 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 8 May 2019 and dispatched by email. Regulation 2.55 provides that, if the applicant is notified of a primary decision to cancel his or her visa by fax, e-mail or other electronic means, the applicant is taken to have received the document at the end of the day on which the document is transmitted.

4. An issue in this case is whether the Department of Home Affairs’ notification letter of 8 May 2019 complied with the legislative requirements and, therefore, the applicant had to lodge his review application within 21 calendar days from the end of the day on which the decision was emailed. On 18 April 2019, the Full Federal Court handed down DFQ17 v MIBP[1] finding that a Departmental notification letter for a Part 7-reviewable decision sent by post did not comply with the requirement that it state the time in which the application for review is to be made as required by s.66(2)(d)(ii) of the Act. The Court held that the information about the prescribed period was obscure and incomprehensible. However, on 12 July 2019, the Federal Court distinguished DFQ17 in Ali v MHA[2] where it found that none of the complexities in DFQ17 were present in the relevant notification which was for a Part 5-reviewable decision sent by email.[3]

   [1] [2019] FCAFC 64.

   [2] [2019] FCA 1102.

   [3] The Federal Circuit Court also distinguished DFQ17 in BMY18 v MIBP [2019] FCCA 1381, BUY18 v MICMSMA [2019] FCCA 1787, APN19 v MICMSMA [2019] FCCA 2342 and, FJR18 v MHA [2019] FCCA 2274 where notification was by email.

5. The Tribunal is guided by Ali in finding that the information contained in the letter of 8 May 2019 that  ‘An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.…... As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted’ clearly conveyed the mandatory information and complied with the requirements of s.66(2)(d)(ii) of the Act. It contains sufficient information to easily determine the time within which to lodge the review application. The Tribunal finds that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal wrote to the applicant on 18 September 2019 and invited comment from her in relation to a preliminary view that the application was not valid given it had not been lodged in the 21 days after the notification of the primary decision. The letter explained to the applicant that the primary decision was emailed to her on 8 May 2019 and, on the basis that 8 May 2019 was the date on which he is taken to have received notice of the decision, the last day for lodging the application was 29 May 2019.  The letter explained that as the review application was not received until 4 June 2019, it appeared out of time.  The letter indicated the Tribunal required a response, in writing, by 2 October 2019.  The Tribunal has received no response to the letter sent to the applicant on 18 September 2019.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 8 May 2019: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 29 May 2019.

8. As the application for review was not received by the Tribunal until 4 June 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.

   DECISION

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

   David Barker
   Member