Gatla (Migration)

[2018] AATA 3340

Gatla (Migration) [2018] AATA 3340 (17 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Prabhodini Gatla

CASE NUMBER:  1815202

DIBP REFERENCE(S):  OSF2008/044420

MEMBER:Amanda Mendes Da Costa

DATE:17 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2018 at 4:30pm

CATCHWORDS

MIGRATION – Partner (Migrant) (class BC) visa – Subclass 100 (Spouse B) – defective primary decision notification – applicant not in the migration zone at time of review application – no jurisdiction

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 29
Migration Act 1958, ss 65, 338, 347, 411, 412, 494B
Migration Regulations 1994, rr 4.02, 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application was made to the Tribunal on 24 May 2018 for review of a decision made by the delegate of the Minister for Immigration and Citizenship on 30 September 2011 to refuse to grant the applicant a Partner (Migrant) (class BC) visa under s.65 of the Migration Act 1958 (the Act).  The Tribunal notes that the review application was lodged on 24 May 2018.

2. Pursuant to s347 (1) (b) of the Act and r.4.10 of the Migration Regulations 1994 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.

3. The material before the Tribunal indicates that the notification to the applicant of the primary decision was defective because it was not given in accordance with the provisions of s.494B of the Act, in that it was not sent to the last address for service or last residential or business address provided by the applicant to the Department for the purposes of receiving documents.  Accordingly, the Tribunal is satisfied that the applicant was not notified of the delegate’s decision in accordance with the statutory requirements and therefore the Tribunal is not prevented from having jurisdiction in the matter on the basis of the provisions of s.347 (1) (b) and r.4.10. 

4. However, for the following reasons, the Tribunal has found that it has no jurisdiction in respect of this application.

5. The Tribunal has jurisdiction to review a decision under the Act if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02 (4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal. They include decisions to refuse visas of various kinds, but the evidence before the Tribunal indicates that the applicant was not in Australia at the time the delegate refused the visa application.

6. The Tribunal notes that s.347 (3A) (a) of the Act requires that the applicant was physically present in the migration zone at the time when the delegate’s decision was made, to enable her to make an application for review of that decision to the Tribunal. From a perusal of the Department’s file, the Tribunal is satisfied that the applicant was not present in the migration zone at the time when the delegate’s decision was made.

7. The Tribunal is further satisfied that the delegate’s decision was covered by s.338 (7A) of the Act and that at the time of the visa application the application was outside the migration zone.

8. On 5 June 2018 the Tribunal wrote to the applicant advising that in order to make a valid application, she must have been in Australia at the time the delegate refused the visa application on 30 September 2011 and at the time the application was lodged with the Tribunal on 24 May 2018.  The Tribunal noted that it appeared the applicant was not in Australia on 30 September 2011 and that accordingly her review application was not a valid one.

9. On 19 and 22 June 2018 the applicant provided the Tribunal with written responses in which she acknowledged that she was not in Australia on 30 September 2011 when the delegate refused the visa application.  In these written responses, the applicant advised the Tribunal of the following:

   (a)her husband behaved in an abusive and controlling manner towards her throughout their marriage;

   (b)her husband forced her to return to India during her pregnancy in 2010;

   (c)due to marital and custodial disputes the she remained in India with her husband until May 2011 when her husband ended their marriage and returned to Australia without her prior knowledge;

   (d)she was not aware that the Department had sent her emails and letters regarding her visa application to her last known address in Australia;

   (e)she discovered that the delegate had refused her visa application, when she contacted the Department in 2011; and

   (f)she returned to Australia with her son on 2 December 2018 and has been living her since then.

10. The applicant requested the Tribunal to consider the compelling and compassionate grounds relating to her circumstances and the extreme hardship which would be caused to the applicant’s seven year old son if he were required to return to live in India with his mother, if the application were not granted.  The applicant submitted that it would be difficult for her son (who has lived nearly his entire life and is being educated here) to return to India or be separated from his mother if she could not stay in Australia.

11. The Tribunal finds that as there is no reviewable decision it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Amanda Mendes Da Costa
    Member