1609150 (Migration)

[2016] AATA 4365

1609150 (Migration) [2016] AATA 4365 (9 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Thi Thanh Huong La   Ms Thi Thanh Thuy La

CASE NUMBER:  1609150

DIBP REFERENCE(S):  01025748

MEMBER:Mila Foster

DATE:9 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 09 September 2016 at 5:04pm

STATEMENT OF DECISION AND REASONS

APPLICATIONS FOR REVIEW

1. On 19 April 2016, a delegate of the Minister for Immigration refused to grant Miss Thi Thanh Huong La (Miss Huong La) a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). That decision (the decision) is reviewable by the Tribunal under s.338(7) of the Act.

2. On 21 June 2016 the Tribunal received an application seeking review of the decision. The application included an eM1 form which identified Miss Huong La as the person applying for review in her capacity as the visa applicant, and nominated Ms Thuy La as the authorised recipient. The application included a copy of the decision, the Department of Immigration and Border Protection (the Department) letter notifying Miss Huong La of the decision and a submission in support of the application. The Department file number recorded on both the decision and the letter was 01025748.

3. On 20 July 2016 the Tribunal received an M1 Application for review – Migration form seeking review of a decision made on 24 April 2016 to refuse a Class FA visa. The Department file number provided was 01025748, Ms Thi Thanh Thuy La (Ms Thuy La) was named as the person applying for review and Miss Huong identified as the visa applicant. As there is no decision before me refusing Ms Huong La a Visitor (Class FA) visa on 24 April 2016, it is evident that this date was a typographical error and that this second review application sought review of the decision made on 19 April 2016 to refuse Miss Huong La a Visitor (Class FA) visa.

4. On 5 August 2016 the Tribunal wrote to Miss Huong La via Ms Thuy La about the validity of the above review applications and a response was received from Miss Huong La’s brother-in-law, Markus Pfister, on 19 August 2016.

5. For the following reasons, I have concluded that neither review application was made in accordance with the relevant legislation and thus the Tribunal does not have jurisdiction to review the decision.

6. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable (under Part 5 of the Act). In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c). The relative referred to in s.338(7) is the parent, spouse, de facto partner, child, brother or sister who the non-citizen intends to visit in Australia and whose particulars were included in the visa application. I have before me Department file 01025748 which contains the visitor visa application Ms Huong La made on 5 April 2016. In that visa application, the relevant relative who Miss Huong La said she intended to visit was her sister, Ms Thuy La. Thus, I find that only Ms Thuy La could apply for review of the decision made on 19 April 2016 to refuse Miss Huong La a Visitor (Class FA) visa.

7. As indicated above, in the review application form received on 21 June 2016, Miss Huong La was identified as the person applying for review in her capacity as the visa applicant and Ms Thuy La was identified not as a review applicant but as the authorised recipient. There is nothing in the form or the accompanying written submission to indicate that Ms Thuy La intended to apply for review at that time. I thus find that the application for review received on 21 June 2016 was made by Miss Huong La and not Ms Thuy La, and therefore was not was not properly made under s.347.

8. Turning to the review application lodged on 20 July 2016. Pursuant to s.347(1)(b) of the Act and r.4.10 of the Migration Regulations 1994 (the Regulations) the application for review of the decision had to be made within 70 days after Miss Huong La was notified of the decision in accordance with the statutory requirements.

9. Section 66(1) of the Act and r.2.16(3) of the Regulations require an applicant who has been refused a visa to be notified of the decision by one of the methods specified in s.494B of the Act. One of those methods includes transmission by email. The material before me indicates that Miss Huong La was notified of the decision by letter dispatched by email on 19 April 2016[1]. I am satisfied that Miss Huong La was notified of the decision in accordance with the statutory requirements. As the decision was emailed, pursuant to s.494C of the Act, Miss Huong is taken to have been notified of the decision on 19 April 2016. Therefore, the prescribed period within which an application for review of the decision could be made ended on 28 June 2016. As the second application for review was not received by the Tribunal until 20 July 2016, it follows it was not made in accordance with the relevant legislation. It was not, as Mr Pfister claimed in his letter, made in time. Further, there is no provision within the Act or Regulations to accept review applications which have not made within the prescribed period of time for any reason.

   [1] AAT file number 1609150 at ff.8-9.

10. None of the information in Mr Pfister’s letter indicates that either the review application made on 21 June 2016 or the one made 20 July 2016 was made in accordance with the legal requirements referred to above.

11. As neither application for review was made in accordance with the relevant law, the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Mila Foster
    Member