Dzhakhanirova (Migration)

[2018] AATA 5951

Dzhakhanirova (Migration) [2018] AATA 5951 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Liennara Dzhakhanirova

CASE NUMBER:  1820754

DIBP REFERENCE(S):  

MEMBER:Helena Claringbold

DATE:9 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 August 2018 at 2:29pm

CATCHWORDS
MIGRATION – Other Family (Residence) (Class BU) visa – application for review lodged out of time – applicant stated residential address for “correspondence” and agreed to Department “communicating” by email – notification of refusal sent to email address – notification in accordance with statutory requirements – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 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 Immigration and Border Protection, on 22 January 2018 to refuse to grant an Other Family (Residence) (Class BU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 17 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. On 20 July 2018, the Tribunal wrote to the review applicant and put to her that it appeared her application was not a valid application as it was not lodged within the relevant time frame.  The review applicant was invited to make comment about the validity of the application for review and for comment to be with the Tribunal by 3 August 2018.

4. In July 2018, the review applicant commented via her migration agent. He stated that, although the decision is dated 22 January 2018, it was not properly given to the review applicant until she specifically authorised use of her email on, or about, 6 July 2018. He claimed that the review applicant on her form 47 specifically stated that her address for correspondence was her residential address. He argues that the review applicant agreed to communication by email on the same form, however ‘communication’ is different from ‘correspondence’, so all correspondence should have been sent to the residential address. He claimed that because the notification of refusal was sent to the review applicant’s email address, it was not properly given to her and the time does not commence to run from 22 January 2018. He argues that as the review applicant was only properly given the documents on, or about, 6 July 2018, the application for review is within time.

5. Information before the Tribunal is that at the time of application, the review applicant, on her form 47, at question 23 provided her residential address.  At question 24, in response to the question, address for correspondence she wrote as above, indicating her residential address. However at question 26, in response to the question do you agree to the Department communicating with you by fax, email, or other electronic means? The review applicant ticked yes and provided her email address.

6. The Oxford dictionary defines communicating as to ‘impart information, knowledge, or the like, to a person; to impart the knowledge or idea of something, to inform a person of; to convey, express; to give an impression of, put across’. The Macquarie Dictionary definition includes communicating as ‘to give to another as a partaker; impart; transmit’.

7. The Oxford dictionary defines correspondence as ‘the action or fact of corresponding’. The Macquarie Dictionary definition includes ‘communication by exchange of letters’

8. The Tribunal is of the view that at the time of application, the review applicant in ticking yes to question 26 and in providing her email address, agreed to the Department providing her with information about the visa application, including correspondence by email.

9. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 22 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

10. The Tribunal finds that the applicant is taken to have been notified of the decision on 22 January 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 February 2018.

11. As the application for review was not received by the Tribunal until 17 July 2018 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.

    Helena Claringbold
    Member