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

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.
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 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.
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]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 4667
Decision Date: 17 October 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered an application for review lodged by Mr Zeng concerning a Student (Temporary) (Class TU) visa. The core of the dispute was whether the Tribunal had jurisdiction to hear Mr Zeng's application, which was filed after the statutory deadline.

The primary legal issue before the Tribunal was whether Mr Zeng's application for review had been lodged in accordance with the relevant legislative requirements, specifically concerning the time limit for lodgement. This question of jurisdiction was central to the Tribunal's ability to proceed with the substantive merits of Mr Zeng's case.

The Tribunal found that the application for review was received on 4 June 2019, which was beyond the prescribed time limit. The Tribunal noted that the Department's letter had complied with legislative requirements and clearly conveyed mandatory information. As the application was not lodged within the statutory timeframe, the Tribunal concluded that it lacked jurisdiction to consider the matter. Consequently, the Tribunal made no orders on the merits of the application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 The Tribunal does not have jurisdiction in this matter.David BarkerMember

Ratio Decidendi

Legal Principle Established

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