Fard Kardel (Migration)

[2019] AATA 4626

Fard Kardel (Migration) [2019] AATA 4626 (11 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Mahmoud Fard Kardel

CASE NUMBER:  1901000

DIBP REFERENCE(S):  BCC2018/4967856

MEMBER:Katie Malyon

DATE:11 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 11 February 2019 at 12:13 pm

CATCHWORDS
MIGRATION – Skilled Provisional (Class VC) visa – Subclass 485 – review application lodged out of time – representative’s office closed for Christmas/New Year – no discretion to extend time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), s 65, 347(1)(b), 494C

Migration Regulations 1994 (Cth), r 4.10

CASE

Beni v MIBP [2018] FCAFC 228

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 24 December 2018 to refuse to grant the review applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).  

2. The review application was lodged with the Tribunal on 15 January 2019. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

3. 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 the delegate’s decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. Material before the Tribunal indicates that the applicant, Iranian national Dr Mahmoud Fard Kardel, was notified of the decision by letter dated 24 December 2018 which was dispatched by email to his representative.  The Tribunal is satisfied that Dr Kardel was notified of the delegate’s decision in accordance with the statutory requirements.  On the basis that 24 December 2018 was the date on which Dr Kardel is taken to have been notified of the delegate’s decision, the last day for lodging the application for review was 14 January 2019.

5. The Tribunal formed a preliminary view that the delegate’s decision was not reviewable because the review application was lodged out of time and, on 21 January 2019, wrote to Dr Kardel inviting him to comment on the validity of his application. 

6. Dr Kardel’s representative responded on 4 February 2019 on his behalf.  The representative acknowledges the delegate’s decision was made on 24 December 2018 and that the last day to submit to the review application to the Tribunal was 14 January 2019.  However, the representative notes that, due to the holiday season, his office was closed from Friday, 21 December 2018 until Monday, 7 January 2019 and that, during this time, no one attended the office or attended to any cases.  Upon returning to the office on 7 January 2019, the representative contacted Dr Kardel, who came into the office on Friday, 11 January 2019 to discuss prospects for a review.  Dr Kardel made a second visit to the representative’s office on Tuesday, 15 January 2019 when he gave instructions to pursue the review application. 

7. By way of concluding comment, the representative submits that the Tribunal should consider the exceptional time period (that is, the Christmas new Year holiday period) during which the case was presented to his law firm.  The representative states that he wishes to have the Tribunal consider the extensive work that goes into reading a decision as well as advising a client, and that completing all of this during the holiday period would have been unreasonable.

8. The Tribunal has had regard to the submission provided by Dr Kardel’s representative and his explanation for the acknowledged late lodgement of the review application, in this case, by just one day.  However, irrespective of the applicant’s reasons for late lodgement, the Migration and Refugee Division of the Tribunal is not permitted to extend the time for making an application to the Tribunal: Beni v MIBP [2018] FCAFC 228.  The Tribunal has no discretion and must apply the law.

9. Having regard to available evidence, the Tribunal finds that, in accordance with s.494C of the Act, Dr Kardel is taken to have been notified of the delegate’s decision on 24 December 2018. Therefore, the prescribed period to apply for review ended on 14 January 2019.

10. As the application for review was not received by the Tribunal until 15 January 2019 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

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

    Katie Malyon

    
    Member