Cao (Migration)

[2018] AATA 4397

Cao (Migration) [2018] AATA 4397 (29 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms To Huyen Suong Cao

CASE NUMBER:  1821156

DIBP REFERENCE(S):  BCC2015/3981574

MEMBER:Susan Trotter

DATE:29 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 29 October 2018 at 5:33pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – review application out of time – compelling and compassionate circumstances – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347
Migration Regulations 1994, 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 Immigration on 15 June 2017 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 20 July 2018. 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 15 June 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. Therefore the prescribed period to apply for review ended on 6 July 2017.

4. On 12 October 2018, the Tribunal sent the applicant a letter, care of her representative and recipient, noting its preliminary view that it lacked jurisdiction on the basis that the application had been lodged out of time. The applicant was invited to provide any response or comment.

5. The applicant’s representative responded on 26 October 2018 acknowledging that the application had been lodged outside of the permitted timeframe but seeking the Tribunal’s consideration of the application on compelling and compassionate, which grounds were outlined in detail in the response.

6. The Tribunal acknowledges the response received. However, no matter what the circumstances leading to the application being lodged out of time, whether by negligence or otherwise the of applicant’s former representative and therefore of no fault on the part of the applicant, or otherwise, the Tribunal has no discretion to extend the strict statutory timeframes. As the application for review was not received by the Tribunal until 20 July 2018, the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Susan Trotter
   Member