BOLIVAR (Migration)

[2017] AATA 822

BOLIVAR (Migration) [2017] AATA 822 (18 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Roland Labitag Bolivar

CASE NUMBER:  1704656

DIBP REFERENCE(S):  BCC2016/1523436

MEMBER:Katie Malyon

DATE:18 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2017 at 2:51 pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – 21 day timeframe – Application lodged out of time – Notification went to Spam inbox

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, 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 9 February 2017, to refuse to grant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 14 March 2017.  The issue in the present case is whether the Tribunal has jurisdiction to review the application. 

   Was the review application received by the Tribunal in time?

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. Material before the Tribunal indicates that the applicant, Mr Roland Labitag Bolivar, was notified of the decision by letter dated 9 February 2017.  The letter was dispatched by email to his nominated email address.  The Tribunal is satisfied that Mr Bolivar was notified of the decision in accordance with the statutory requirements.

5. The Tribunal formed a preliminary view that the application for review was not a valid application as it was not lodged within the relevant time limit.  On 4 May 2017, Mr Bolivar responded to the Tribunal’s invitation to comment on the validity of his application for review. 

6. Mr Bolívar advised the Tribunal that the Department’s refusal letter was sent to his sponsor and that his sponsor on-forwarded the refusal to his email address.  However, he was not able to check his email spam/junk inbox.  As a result, he did not receive notification and was not able to monitor the validity date of a review application: for this reason, he missed the 21 day time period of applying for a review.  Mr Bolivar apologised for this and asked his sponsor if they could nonetheless apply for a review.  He accepts it is his negligence but said he was not expecting his sponsor’s on-forwarded email to go to his spam/inbox: this was due to circumstances beyond his control.

7. The Tribunal has considered Mr Bolivar’s response to the Tribunal’s letter: however, it does not have any discretion in this matter.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the Department’s decision as the review application was not made in accordance with the relevant legislation.

8. The Tribunal finds that in accordance with s.494C of the Act, Mr Bolivar is taken to have been notified of the Department’s decision on 9 February 2017. Therefore, the prescribed period within which the review application could be made ended on 2 March 2017. As the application for review was not received by the Tribunal until 14 March 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.

   Katie Malyon

   
   Member