Brar (Migration)

[2022] AATA 473

Brar (Migration) [2022] AATA 473 (10 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Davinder Kaur Brar
Mr Parminder Singh Brar
Master Gurshan Singh Brar

CASE NUMBER:  2200244

HOME AFFAIRS REFERENCE(S):          BCC2021/432932

MEMBER:De-Anne Kelly

DATE:10 March 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 10 March 2022 at 11:39am

CATCHWORDS
MIGRATION – Skilled Work Regional (Provisional) (Class PS) visa – Subclass 491 (Skilled Work Regional (Provisional)) – application made more than 21 days after notification of department’s refusal decision – no response to tribunal’s invitation to comment – members of family unit – no jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C
Migration Regulations 1994 (Cth), r 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 Home Affairs on 10 December 2021 to refuse to grant Skilled Work Regional (Provisional) (Class PS) visas under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 6 January 2022. 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 reg 4.10 of the Migration Regulations 1994 (Cth) (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 10 December 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 December 2021: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 31 December 2021.

5. As the last day of the prescribed period did not fall on a Saturday, Sunday or holiday, the applicant did not have until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application, i.e. until 1 January 2022: s 36(2) of the Acts Interpretation Act 1901 (Cth).

6. On 7 January 2022, the Tribunal invited the applicant to respond by 21 January 2022 to the information that the primary decision was emailed to the applicant on 10 December 2021 and that was therefore the date on which he had been taken to have been notified and as such the last day for lodging the review application was 31 December 2021. The application was received on 6 January 2022 and it appeared to be out of time and may not be a valid application. There was not a response to the invitation to comment.

7. As the application for review was not received by the Tribunal until 6 January 2022 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

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

   De-Anne Kelly
   Member