Goodin (Migration)

[2021] AATA 347

Goodin (Migration) [2021] AATA 347 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Anita Louise Lai Fong Goodin

VISA APPLICANT:  Mr Walter Samuel Schnaubelt

CASE NUMBER:  2004328

DIBP REFERENCE(S):  CLF2020/19865

MEMBER:De-Anne Kelly

DATE:29 January 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 29 January 2021 at 9:03am

CATCHWORDS
MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – review application lodged out of time – poor internet coverage – difficulty in receiving email communications and lodging applications on time – No jurisdiction

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), ss 65, 347, 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 on 21 August 2019 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 4 March 2020. 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 70 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 21 August 2019 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 21 August 2019: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 October 2019.

5. The last day of the prescribed period did not fall on a Saturday, Sunday or holiday therefore the applicant did not need until the end of the next day that was not a Saturday, a Sunday or a holiday to lodge his or her application; s.36(2) of the Acts Interpretation Act 1901.

6. On 22 June 2020, the Tribunal by email to the last email address in the review application wrote to the applicant and advised that it appeared the review application was not valid as it was not lodged within the relevant time limit. It advised that the time limit is 70 days from the day on which the visa applicant is taken to have been notified of the primary decision. The primary decision was emailed to the visa applicant on 21 August 2019 and, on the basis that 21 August 2019 was the date on which the visa applicant is taken to have been notified, the last day for lodging the application for review was 30 October 2019. As the application was not received until 4 March 2020, it appears to be out of time. The applicant was invited to comment on the validity of the review application in writing by 6 July 2020. The applicant was advised that if they had any questions, they could email the registry; call the direct number or the national enquiry line. Email addresses and phone numbers were provided in the letter.

7. On 20 September 2020 a letter was received from the applicant which discussed the merits of the delegates decision on the visitor visa applications but did not address the validity of the review application. It also stated that the applicant was in an area with poor internet coverage and this contributed to the difficulty in receiving email communications and lodging applications on time. While this is unfortunate, the Tribunal does not have discretion to accept an application as valid if it does meet the legislative requirements.

8. As the application for review was not received by the Tribunal until 4 March 2020 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

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

   De-Anne Kelly
   Member