Afu (Migration)

[2020] AATA 3480

Afu (Migration) [2020] AATA 3480 (3 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paea I Siafue Afu
Mrs Mele Taufa Afu
Mr Fred Ali Stanley Afu

CASE NUMBER:  2008730

DIBP REFERENCE(S):  CLF2019/33918

MEMBER:Wendy Banfield

DATE:3 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 03 July 2020 at 4:27pm

CATCHWORDS

MIGRATION – Other Family (Residence) (Class BU) visa – Subclass 836 (Carer) – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347
Migration Regulations 1994, rr 2.55, 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 20 February 2020 to refuse to grant Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 25 May 2020. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 February 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

   On 2 June 2020 the Tribunal wrote to the applicants inviting them to comment on the validity of the application for review. On 16 June 2020 the applicants responded to the information. It was submitted the applicants did not see the Departments decision when it was first emailed to them. It was not until Thursday 21 May 2020, my daughter in law checked from her computer and found the letters from Immigration. We checked and checked again on my computer and found the mail sitting on Spam as my computer was highly infected.

4. The response to the invitation to comment has been considered, however, once the applicant is properly notified of the decision, the Tribunal does not have discretion in the matter. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 February 2020: r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 12 March 2020.

5. As the application for review was not received by the Tribunal until 25 May 2020 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

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

   Wendy Banfield
   Member