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1108370 [2011] MRTA  2430  (18 October 2011)

Last Updated: 31 October 2011

1108370  [2011] MRTA 2430  (18 October 2011)

DECISION RECORD

APPLICANT: Waterbrook Enterprises Pty Ltd

MRT CASE NUMBER: 1108370

DIAC REFERENCE(S): CLF2010/173828

TRIBUNAL MEMBER: Margret Holmes

DATE: 18 October 2011

PLACE OF DECISION: Melbourne

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship (the delegate) to reject the applicant’s application for approval of a nominated position under r.5.19(1B) of the Migration Regulations 1994 (the Regulations).
2. The applicant applied for approval of a nominated position under r.5.19 of the Regulations on 22 September 2010. The delegate decided to reject the application on 15 July 2011 and notified the applicant of the decision and its review rights by letter dated 15 July 2011 and emailed on 15 July 2011.
3. The applicant applied to the Tribunal on 12 August 2011 for review of the delegate’s decision.
4. The question that arises in this case is whether the Tribunal has jurisdiction. Whether it does depends on whether the application lodged on 12 August 2011 is an application properly made under s.347 of the Act for review of the delegate’s decision.
5. The Tribunal formed the preliminary view that it did not have jurisdiction because the application for review was not received within the prescribed period for lodgement. The Tribunal wrote to the applicants on 6 September 2011 inviting submissions on this issue. The Tribunal received a written submission on 27 September 2011.

RELEVANT LAW

6. The Tribunal’s jurisdiction arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act. Section 338 of the Act and r.4.02(4) of the Regulations set out the various decisions that are MRT-reviewable decisions. A decision to reject an application for approval of a nominated position under r.5.19(1B) is covered by s.338(9) and r.4.02(4)(e). Section 347(1)(b) requires an application for review to be given to the Tribunal within the prescribed period. The prescribed periods are set out in r.4.10 of the Regulations and commence on the day on which the applicant is validly notified of the decision.
7. In respect of an applicant who has applied for review of an MRT-reviewable decision covered by s.338(9) and r.4.02(4)(e) the application for review must be lodged at a registry of the Tribunal within a period not later than 21 days after the day on which notice is received: s.347(1)(b)(iii) and r.4.10(1)(d). Thus, notification of the decision provides the reference point for the commencement of the prescribed period provided for in s.347(1)(b)(iii) and r.4.10(1)(d). Importantly, there is no provision for an extension of time. An application sent to the Tribunal by post or by fax or other electronic means is taken to be given to the Tribunal when it is received at a registry of the Tribunal: r.4.10(5) and (6).
8. The provisions relevant to this matter that deal with notification of a decision to reject an application for approval of a nominated position under r.5.19(1B) are s.494A, s.494B, s494C, s.494D, and r5.19(1D).
9. Where no specific method of notification of the decision is identified in the legislation, s.494A provides that the Minister may give the notification by any method that he or she considers appropriate. This may include one of the methods mentioned in s.494B of the Act. Where s.494A applies and the Minister gives the person notification of the primary decision by one of the methods mentioned in s.494B, the “deeming” provisions for time of receipt in s.494C will also apply.
10. One of the methods specified in s.494B consists of the Minister transmitting the document by fax or e-mail to the last fax number or e-mail address provided to the Minister for the purpose of receiving documents: s.494B(5). If a document is given to a person by this method, the person is taken to have received the document at the end of the day on which the document is transmitted: s.494C(5). This will be so despite the deemed receipt provisions of the ‘Electronic Transactions Act 1999’: s.494C(5) and (6). Therefore, if the notice of a decision to reject an application for approval of a nominated position under r.5.19(1B) was sent in accordance with s.494B(5), the prescribed period within which a review application must be lodged with the Tribunal commences at the end of the day on which the document is transmitted.
11. If an applicant has nominated an 'authorised recipient' by giving the Minister written notice of the name and address of another person authorised by the applicant to receive documents in connection with matters arising under the Act or the regulations, the Minister must give the authorised recipient, instead of the applicant, any documents that the Minister would otherwise have given to the applicant: s.494D(1) of the Act. If the Minister gives a document to the authorised recipient, the Minister is taken to have given the document to the applicant: s.494D(2) of the Act. However, this does not prevent the Minister giving the applicant a copy of the document.

FINDINGS AND REASONS

12. The Tribunal has before it the Department’s file CLF2010/173828 .
13. The Tribunal has also had regard to the submission received on 27 September 2011 in relation to the question of jurisdiction.
14. The material before the Tribunal indicates, and the Tribunal finds, that the applicant was not in immigration detention when notified of the decision.
15. The Tribunal finds that the applicant is seeking review of an MRT-reviewable decision covered by s.338(9) and r.4.02(4)(e) and that the applicable prescribed period is 21 days, starting when the applicant was validly notified of the decision in accordance with the Act: s.347(1)(b)(iii) and r.4.10(1)(d).
16. The Tribunal is satisfied that the contents of the delegate’s decision notice complied with the requirements of r.5.19(1D).
17. The material before the Tribunal indicates that the applicant gave the Minister written notice under s.494D of the name and address of an authorised recipient and that the decision notice, dated 15 July 2011, was transmitted by email to the authorised recipient on 15 July 2011.
18. The Tribunal finds that the decision notice was emailed on the day it was dated to the correct email address, in accordance with s.494B(5). Therefore, the applicant is taken to have received the notice on 15 July 2011, being the day when the notice was transmitted.
19. In a submission received on 27 September 2011 from the applicant, it was stated that the applicant did not received the primary decision, and assumed that the primary decision was sent to the then migration agent of the related visa applicant and further confirms that the primary decision was never forwarded to his office.
20. The Department’s file includes a completed form ‘Appointment of a migration agent or exempt agent or other authorised recipient’ It indicates that the applicant had appointed a migration agent to act and receive written communication on his behalf. The form was signed by the applicant and dated 3 March 2010 and received by the Department on 22 September 2010.
21. The file confirms both the notification of decision and decision record were transmitted via email to the authorised recipient email address provided to the Department.
22. Therefore, the Tribunal finds that the applicant was properly notified of the delegate’s decision and is taken to have been notified on 15 July 2011. Therefore, the prescribed period of 21 days within which the application for review could be lodged ended on 5 August 2011.
23. The application for review was not received by the Tribunal until 12 August 2011, after the prescribed period had expired. The Tribunal has no power to extend the time within which an application for review must be lodged.
24. For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter.
25. The Tribunal notes that the Department’s file shows that the applicant nominated a new representative on 11 August 2011, unfortunately after the prescribed time within which a valid review application could be lodged had expired.

DECISION

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

Margret Holmes

Member