Church of Scientology Australia (Migration)

[2019] AATA 254

Church of Scientology Australia (Migration) [2019] AATA 254 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Church of Scientology Australia

VISA APPLICANT:  Mr Cheng-Guang WANG

CASE NUMBER:  1835214

DIBP REFERENCE(S):  BCC2018/4281306

MEMBER:Katie Malyon

DATE:5 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 February 2019 at 10:35 am

CATCHWORDS

MIGRATION – Temporary Activity (Class GG) visa – Subclass 408 (Temporary Activity) – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration on 30 October 2018 to refuse to grant Taiwanese national Mr Cheng-Guang Wang a Temporary Activity (Class GG) Subclass 408 visa under s.65 of the Migration Act 1958 (the Act).  The review application was lodged with the Tribunal on 29 November 2018 by Mr Wang’s sponsor, the Church of Scientology Australia.  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 Mr Wang was notified of the delegate’s decision in accordance with the statutory requirements.

3. Material before the Tribunal indicates that Mr Wang was notified of the decision by letter dated 30 October 2018, dispatched by email on 30 October 2018 to his appointed representative.  The Tribunal is satisfied that Mr Wang was notified of the decision in accordance with the statutory requirements.

4. 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 11 January 2019, the Tribunal wrote to the review applicant inviting comments on the validity of the review application. 

5. The representative responded on behalf of the review applicant attaching a signed notice of withdrawal.  However, withdrawal of an application assumes that the application has, in fact, been validly made.  In the circumstances of this case, the Tribunal finds that Mr Wang is taken to have been notified of the delegate’s decision on 30 October 2018.  On the basis that 30 October 2018 was the date on which Mr Wang is taken to have been notified of the delegate’s decision, the last day to lodge an application for review with the Tribunal was 20 November 2018.  However, the application for review was not received by the Tribunal until 29 November 2018.

6. The Tribunal finds that, in accordance with s.494C of the Act, Mr Wang is taken to have been notified of the Department’s decision to refuse his Subclass 408 visa application on 30 October 2018. Therefore, the prescribed period within which the review application could be made ended on 20 November 2018. As the review application was not received by the Tribunal until 29 November 2018, it follows that the application for review was not made in accordance with the relevant legislation and, accordingly, the Tribunal finds it has no jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member