Alueth (Migration)

[2017] AATA 1767

Alueth (Migration) [2017] AATA 1767 (28 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Magol Gabriel Alueth

VISA APPLICANTS:  Mr Ruben Makuach Majak MAKUACH
Mr Chadrack Chol Alueth
Mr Alueth Majok Alueth Magol

CASE NUMBER:  1717319

DIBP REFERENCE(S):  BCC2016/3946915

MEMBER:Russell Matheson

DATE:28 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 August 2017 at 2:42pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Standing of the Review Applicant – Review application out of time

LEGISLATION

Migration Act 1958, s 65, 338, 347, 494C

Migration Regulation 1994, Schedule 2 cl 457.223(4)(a), r 4.10

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 29 May 2017, to refuse to grant Partner (Provisional) (Class UF) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 8 August 2017. 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 70 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. The primary decision was emailed to the applicant on 29 May 2017 and, on the basis that 29 May was the date on which the applicant is taken to be notified, the last day for lodging the application for review was 7 August 2017. As the application was not received until * August 2017, it appears to be out of time.

5. 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(5), an application for review may only be made by the sponsor or nominator referred to in the subsection concerned: s.347(2)(b).

6. On 11 August 2017, the Tribunal invited the sponsor to make comment on the validity of the review application with a response to be submitted in writing by 25 August 2017. The sponsor has provided the Tribunal with an on line submission on 23 August 2017 (TF, folio 29). As such, this on line submission does not address the question of the validity of the application for review. While the Tribunal sympathises with the sentiments conveyed by the applicants sponsor, the Tribunal does not have the discretion to waive the legislative requirements in regards to matters of jurisdiction.

7. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 29 May 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

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 29 May 2017. Therefore the prescribed period within which the review application could be made ended on 7 August 2017. As the application for review was not received by the Tribunal until 8 August 2017 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

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

   Russell Matheson
   Member