1600010 (Migration)

[2016] AATA 3310

1600010 (Migration) [2016] AATA 3310 (22 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Kelly

CASE NUMBER:  1600010

DIBP REFERENCE(S):  BCC2015/1883847

MEMBER:Steve Georgiadis

DATE:22 February 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 22 February 2016 at 12:19pm

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 4 December 2015, to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 1 January 2016. 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 4 December 2015 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 19 January 2016 the Tribunal wrote to the applicant through his representative expressing its view that the application is not a valid application as “it was not lodged within the relevant time limit. The time limit is 21 [days] from the day on which you are taken to have been notified of the primary decision. The primary decision was emailed to your authorised recipient on 4 December 2015 and, on the basis that 4 December 2015 was the date on which you are taken to have been notified, the last day for lodging the application for review was Tuesday 29 December 2015 (four additional days were added as the last day to lodge landed on a public holiday). As the application was not received until 1 January 2016, it appears to be out of time.”

6. There was no response by the due date of 2 February 2016.  On 3 February 2016 the applicant’s representative wrote to the Tribunal seeking to “withdraw this application form (sic) further consideration.”

7. The Tribunal finds that in accordance with r.2.55 of the Regulations or s.494C of the Act, the applicant is taken to have been notified of the decision on 4 December 2015. Therefore, the prescribed period within which the review application could be made ended on 29 December 2015. As the application for review was not received by the Tribunal until 1 January 2016 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

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

   Steve Georgiadis
   Member