1600296 (Migration)

[2016] AATA 3229

1600296 (Migration) [2016] AATA 3229 (9 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Amber Joy Gambagogl Mori

CASE NUMBER:  1600296

DIBP REFERENCE(S):  BCC2015/3857883 CLF2016/2059

MEMBER:Bruce Henry

DATE:9 February 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 09 February 2016 at 5:04pm

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 16 December 2015, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 9 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 16 December 2015 and dispatched by email to the address provided by the applicant in her visa application.

5. On 19 January 2016 a Tribunal officer wrote to the applicant stating:

   I am of the view that your 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 you on 16 December 2015 and, on the basis that 16 December 2015 was the date on which you are taken to have been notified, the last day for lodging the application for review was 6 January 2016. As the application was not received until 9 January 2016, it appears to be out of time. However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing, by 2 February 2016. Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons.

6. The applicant replied by email on 27 January 2016 as follows:

   The only reason I can give for my late application is that it was a miscalculation due to a misunderstanding on my part. For some reason I was under the impression that I had 28 days to submit my application for review. I had decided to submit the application towards of the given time period as I was awaiting examination booking confirmation from Aviation Australia and also I had sent my appeal application to several friends and relatives and were awaiting their input.

   Thank you for your consideration.

7. Unfortunately for the applicant the Tribunal has no discretion to consider the matters raised in her response. The legislation does not allow the Tribunal to extend the time for lodgement of a review application or to waive the time requirement.

8. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 16 December 2015. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Therefore the prescribed period within which the review application could be made ended on 6 January 2016. As the application for review was not received by the Tribunal until 9 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.

9. The Tribunal has no power to consider the other matters raised by the applicant in her response.

DECISION

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

Bruce Henry
Member