Dellosso (Migration)

[2021] AATA 3913

Dellosso (Migration) [2021] AATA 3913 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Salvatore Dellosso

CASE NUMBER:  2108385

DIBP REFERENCE(S):  BCC2021/46686

MEMBER:De-Anne Kelly

DATE:22 July 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 22 July 2021 at 3:51pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – application for review lodged out of time – unable to combine review application with partner’s case – separate visa applications made on two different paper forms – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 347
Migration Regulations 1994 (Cth), rr 2.55, 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 4 June 2021 to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 29 June 2021. 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 4 June 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 4 June 2021: r.2.55 of the Regulations. Therefore, the prescribed period to apply for review ended on 25 June 2021.

5. As the last day of the prescribed period did not fall on a Saturday, Sunday or holiday, the applicant had until 25 June 2021 to lodge the review application: s.36(2) of the Acts Interpretation Act 1901.

6. On 5 July 2021 the Tribunal wrote by email to the applicant at the email address given in the review application and advised that their application may not be a valid application as it was not lodged within the relevant time limit. It advised that the time limit is 21 days from the day they are taken to have been notified of the primary decision. The primary decision was emailed to them on 4 June 2021 and, on the basis that 4 June 2021 was the date on which they are taken to have been notified, the last day for lodging the application for review was 25 June 2021. As the application was not received until 29 June 2021, it appeared to be out of time. They were invited to comment on this information by the 19 July 2021.

7. On 19 July 2021, the applicant wrote to the Tribunal and stated that he and his partner had lodged a joint review application but the registry telephoned the applicant on 29 June 2021 and advised that since there were separate visa applications they could not combine their review applications but needed to lodge separate review applications.

8. The Tribunal has examined the file for the partner’s case: 2108224 and notes that the partner lodged the review application on 25 June 2021 at 2:18:54 PM, so on the final day for lodging the review application. It is noted that the applicant was listed as Person 2 on the form under the heading “Additional persons applying for review”.  The applicant claims his partner advised the registry that this part of the form was confusing however it is noted that under the heading “Additional persons applying for review” it states “ NOTE: Select ‘Yes” if more than one person is applying to the AAT – where two or more persons combined their visa application in Australia, and a decision was made not to grant those visas, those persons may combine their application for review”. The Tribunal has examined the visa applications of both the partner and the applicant, and they are clearly separate visa applications made on two different paper forms. The applicant claims that the delegate used the same File number for both applications and this is noted however the applicants received separate receipts for the visa charge with different receipt numbers on them and they had different Application ID numbers indicating that they were separate applications.

9. It is noted that the registry did not attempt to telephone the applicants until 29 June 2021 however with the combined review application lodged on the afternoon of the final day being 25 June 2021, and the need for the registry staff to process and assess the application it would not have been feasible for the registry to undertake this task and then notify the partner and applicant in sufficient time for them to lodge a separate review application on the final day being 25 June 2021. The Tribunal considers that the partner and applicant had sufficient information to demonstrate that their visa applications were separate applications and the review application form advised that separate review applications were required. The Tribunal considers that the registry staff contacted the partner albeit some days later on the 29 June 2021 to advise that they needed separate applications and it would not have been logistically feasible for the registry, even if it were the responsibility of the registry to advise applicants on the proper process of lodging review applications, to have contacted the partner on the afternoon of the final day for lodgement being 25 June 2021 in sufficient time for them to lodge a further review application.

10. While the Tribunal notes the argument put forward by the applicant regarding the confusion over the review applications, it does not consider that this constitutes an administrative error on the part of the Tribunal rather it is the responsibility of applicants to provide themselves sufficient time to lodge applications and to ascertain that they have validly lodged review applications based on their particular visa circumstances.

11. As the application for review was not received by the Tribunal until 29 June 2021 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

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

    De-Anne Kelly
    Member