GOGIKAR (Migration)

[2018] AATA 1945

GOGIKAR (Migration) [2018] AATA 1945 (4 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shailendhar GOGIKAR

CASE NUMBER:  1807066

DIBP REFERENCE(S):  

MEMBER:Mr S Norman

DATE:4 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 May 2018 at 10:30am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Review application out of time

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 of a delegate of the Minister for Immigration on 19 February 2018 to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 March 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 February 2018 (dispatched by email to the applicant’s authorised recipient). The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. By letter of 12 April 2018 (dispatched by email), the Tribunal wrote to the applicant and advised it appeared his application for merits review was not valid as it was not lodged within the relevant timeframe. By emailed response of 26 April 2018, the applicant claimed he advised the Department he had changed his email address for correspondence; and that he was only subsequently aware that a decision had been made about his visa application. However, the evidence before the Tribunal indicated the Department will not send correspondence to a new email address for correspondence, where an applicant had previously chosen to authorise communication using a postal or email address for the visa application, or had authorised another person to receive documents on their behalf, unless properly advised. The Department had not received appropriate advice from the applicant (ie ‘Form 1193 – Communicating by email with the Department’; or ‘Appointment or withdrawal of an authorised recipient’ form - both being available on the Department website in ‘Update us’).

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 February 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 12 March 2018.

6. As the application for review was not received by the Tribunal until 16 March 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

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

   Mr S Norman
   Member