1517091 (Migration)

[2016] AATA 3510

1517091 (Migration) [2016] AATA 3510 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Niral Joshi

VISA APPLICANT:  Mrs Krupali Niral Joshi

CASE NUMBER:  1517091

DIBP REFERENCE(S):  OSF2013052131

MEMBER:Michelle Grau

DATE:8 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 08 March 2016 at 1:26pm

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 17 November 2015, to refuse to grant a Partner (Migrant) (Class BC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 10 December 2015. 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 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 November 2015 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 17 November 2015. Therefore the prescribed period within which the review application could be made ended on 8 December 2015. However the application was lodged on 10 December 2015, which was 2 days out of time. The tribunal has no discretion to extend time to lodge an application.

6. Another issues was that the sponsor applied as the review applicant. However, in respect of subclass 100 visas, the correct review applicant is the visa applicant, not the sponsor. The tribunal was therefore concerned that the application was invalid because the person who applied (the sponsor) did not have standing to apply. [1]

   [1] See s.347(2)(a) of the Migration Act

7. The tribunal has considered the sponsor’s email of 25 February 2016, which was in response to the tribunal’s letter informing that the wrong person had applied for review. The tribunal notes the sponsor claims they are in a genuine relationship and they have a child born in Australia. The sponsor missed the immigration deadline to respond to providing information to process the subclass 100 visa because he is the sole bread winner, works 15 hours a day, looks after two elderly people and he was the only person with enough English to get the documents ready. The sponsor noted he tried to speak with immigration for assistance. The sponsor stated he was the person doing the application as he is paying for it, is the only person who has been dealing with the visa application from the beginning and doing it on his wife’s behalf. He also put the wife’s details in the application form as the visa applicant.

8. The tribunal sympathises with the circumstances and would have been prepared to accept that the sponsor lodged the review application on behalf of his wife, the correct review applicant, and therefore accept the correct person lodged the review application.

9. However, the application was lodged two days out of time and there is no jurisdiction or discretion to extend time. As discussed above, the last day the review application could be lodged was 8 December, but it was lodged on 10 December 2015.

10. As the application for review was not received by the Tribunal until 10 December 2015 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

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

    Michelle Grau
    Member