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Working Days Calculator ......................................................................................................... 21
4. Processes ........................................................................................................................... 22
Identify Jurisdiction Issues ....................................................................................................... 22
Assess Primary Decision Notification for Errors ..................................................................... 24
Provide Natural Justice to RA .................................................................................................. 25
Prepare Jurisdiction Recommendation ..................................................................................... 27
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Application for Review – Date
3.09
An application for review is made when it is received by the tribunal in compliant
form.
3.10
For applications made online, it is tribunal policy that:
a) If the online form was completed in an Australian state with a different time zone
to NSW/Vic, the application is taken to be lodged when it was received according
to the time in the state with a different time zone.
b) If the online form was completed outside Australia, the application is taken to be
lodged when it was received according to ACT time (which is the same as
NSW/Vic).
3.11
Therefore, apply the following rules when determining the time and date of lodgement
of an application lodged online:
a) where an application is lodged online; and
b) where the application appears to be one day late (according to the lodgement
date in CaseMate); and
c) where the RA and REP (if any) are in Australia; and
d) where the RA and REP (if any) reside (according to the addresses provided on
the form) in the same state as each other, being a state in a different time zone to
NSW/Vic (i.e. WA, SA, or NT, or Qld during NSW/Vic daylight saving time); then
e) determine the local time where the online form appears to have been completed
(convert the time found in the application summary to the RA/REP’s local time
using an online time converter); and
f) if the application is within time (before 12 midnight) according to the RA/REP’s
local time, bring the lodgement date in CaseMate forward by one day; and
g) regardless of the outcome, write a short case note setting out any action taken,
and any matters for the member to consider with regards to whether the
application was received within time.
3.12
Further to the previous paragraph, where an application is
a) is lodged online; and
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b) is one day late; and
c) a REP is nominated; and
d) there is some doubt as to where the online form was completed (e.g. the REP
and RA reside in different states, or one of these parties are outside Australia);
and
e) the application may be within time, depending on where the online form was
completed; then
f) telephone the REP and ask where the online form was completed and case note
the conversation; and
g) process the case accordingly.
3.13
An application is not lodged online unless the application has been completed and
submitted (including payment where applicable). This rule applies regardless of the
circumstances which may hinder an application, such as technical difficulties. If
Tribunal Online is experiencing technical problems and time is of the essence, the
RA should submit a paper form (e.g. by facsimile).
Application for Review – Validity
3.14
A ‘valid’ application for review is one that meets the requirements for making a valid
application set out in the Migration Act and Migration Regulations (see Jurisdiction for
further detail). Only a member can determine whether an application is valid and
whether the tribunal has jurisdiction.
CaseMate Functionality
3.15 s 47E(d)
s 47E(d)
s 47E(d)
s 47E(d)
3.16 s 47E(d)
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b) If the primary decision notice must state the time in which a valid review
application can be made, ensure that the correct prescribed lodgement period is
stated (e.g. “21 calendar days after you have taken to have received this letter”).
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Curing Issues
3.24
Certain jurisdictional issues can be ‘cured’ before the end of the prescribed
lodgement period. Specifically:
a) If the wrong person applies for review, and an amended form listing the correct
person as the RA is submitted prior to the end of the prescribed lodgement
period, the new form can be taken as curing the original application.
b) If an approved form is not used, and subsequently the RA provides a completed
approved form prior to the end of the prescribed period, the new form can be
taken as curing the original application.
3.25
In both scenarios above:
a) You may invite the relevant person to submit a new application for review form
within the prescribed lodgement period. However, if a new form is not received
within the prescribed lodgement period (or within 14 working days if the
prescribed lodgement period has not yet commenced due to defective
notification), s 47E(d)
b) s 47E(d)
c) If a the primary decision notice contains an error such that the prescribed
lodgement period is yet to run, and the relevant person has not been renotified by
the Department, the application can be cured at any time.
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Deeming Provisions
3.26
The deeming provisions are sections in the Migration Act that provide that certain
documents are received by the recipient at a certain time whether or not they are
actually received, provided the document is sent or given according to a specified
method.
3.27
For example:
a) If a document is dated and dispatched by prepaid post within 3 working days of
the date of the document to the last residential/business/postal address provided
by the recipient to the Minister for the purposes of receiving documents, and if the
document was dispatched from a place in Australia to an address in Australia,
then the letter is deemed to have been received seven working days after the
date of the letter.
b) If a document is emailed or faxed to the last email address or fax number
provided to the Minister for receiving documents, the document is deemed to
have been received at the end of the day on which the document is transmitted..
3.28
If there is an error in the primary decision notice, the primary decision notice may not
be valid and the prescribed lodgement period may not have yet commenced. This
may mean that the tribunal has jurisdiction in respect of applications that appear to
be lodged out of time.
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Jurisdiction
3.42
There are a number of legislative requirements contained in the Migration Act that
must be met in order for an application for review to be validly made. These
requirements must be met for the tribunals to have the power or ‘jurisdiction’ to
review a decision.
3.43
The requirements for a valid migration (Part 5) review application are set out in
ss.338 and 347 of the Act and rr.4.02, 4.10, 4.11, and 4.12 of the Regulations.
3.44
The requirements for a valid refugee (Part 7) review application are set out in ss.411
and 412 of the Act and rr.4.31, 4.31A and 4.31AA of the Regulations.
Jurisdictionary
3.45
The Jurisdictionary is a tool you should use to assess whether a case has any
jurisdiction issues. The Jurisdictionary is available on the intranet.
3.46
When raising an application, experienced officers may (if confident to do so) assess
jurisdiction requirements for case types with high application rates without reference
to the Jurisdictionary. Refer to the Jurisdictionary if in any doubt as to the specific
jurisdiction requirements.
Jurisdiction Issues
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d) whether the review application was lodged within the prescribed lodgement
period;
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b) If the application was received after the prescribed lodgement period, and it is
clear the tribunal does not have jurisdiction for another reason (e.g. incorrect
location, standing), it would be inefficient to deal with the time issue if the other
jurisdiction issue is determinative and can be dealt with quickly. s 47E(d)
Jurisdiction Recommendation
3.49
Where a case has a jurisdiction issue, registry officers use the Jurisdictionary to
prepare a written recommendation to the member.
3.50
The overall recommendation is generally that:
a) it appears that the tribunal does not have jurisdiction, or
b) it appears that the tribunal has jurisdiction, or
c) it is unclear whether the tribunal has jurisdiction.
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Natural Justice
3.58
Natural justice (also known as procedural fairness) is a concept in administrative law.
It means being fair in the process you undertake when making a decision that affects
a person’s rights.
3.59
When making a decision on whether an application for review is valid, the tribunal
must give natural justice to the RA. This means, the tribunal must give the RA an
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opportunity to comment on the jurisdiction issues and consider those comments
before making a decision. This should be done by sending a natural justice letter.
Natural Justice Letter (NJL)
3.60
Subject to the following exceptions, a natural justice letter (NJL) must be sent by
Registry staff in all cases where it appears the tribunal does not have jurisdiction.
3.61
A NJL is not sent by Registry staff if:
a) the jurisdiction issue relates to the secondary applicant(s) only (in such cases, the
member will give the secondary applicant natural justice after constitution; for
example, at the hearing); or
b) the application is not valid because:
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• a reasonable time (usually 14 days) has passed, and
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Out of Time
3.67
‘Out of time’ is a quick way of saying that the application was not lodged within the
prescribed lodgement period.
Prescribed Lodgement Period
3.68
An application for review must be made within a specific time period. The time period
starts to run when the applicant is deemed to be notified of the Department’s primary
decision.
3.69
An electronic tool (such as the Jurisdictionary, CaseMate, or the working days
calculator) must always be used to calculate the last day of the prescribed lodgement
period.
3.70
Applications received after the last day of the prescribed lodgement period must be
accepted and raised. A member will determine whether the tribunal has jurisdiction to
conduct the review.
3.71
To determine whether an application was made within the prescribed lodgement
period, you must first determine:
a) the date the person was notified of the primary decision and
b) the date review application was made.
3.72
If there is an error in the primary decision notice, the primary decision notice may not
be valid and the prescribed lodgement period may not have yet commenced.
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Working Days Calculator
3.92
The working days calculator is a tool used for determining the last day of prescribed
time periods. The eligibility calculator is a similar tool. These tools are available on
the intranet.
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