Grajo (Migration)

[2019] AATA 6240

Grajo (Migration) [2019] AATA 6240 (22 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kimarfaza Alegria Grajo
Mrs Elvira Grajo
Mr Yrral Ellehc Alambat

CASE NUMBER:  1917499

DIBP REFERENCE(S):  BCC2019/542656

MEMBER:Antonio Dronjic

DATE:22 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 22 October 2019 at 2:38pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – Skilled – Independent – review application out of time – no jurisdiction

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 5 June 2019 to refuse to grant Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 1 July 2019. 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 5 June 2019 and dispatched by email.

4. On 2 September 2019 the Tribunal wrote to the applicant a letter to the email address outlined for correspondence in the applicant’s application for review form, advising that the applicant lodged his review application on 1 July 2019 and that the last day for lodging the application for review was 26 June 2019. The letter indicated that the application appears to be out of time but invited the applicant to make comments by 16 September 2019 as to whether a valid application has been made.

5. On 16 September 2019, the applicants’ representative wrote to the Tribunal stating that:

   ‘Our clients are currently overseas in Philippines and have limited access to internet. As per the applicant’s email (attached), we note the main reason for delaying the lodgement of AAT review application is due to the negligence of the previous migration agent, which is beyond the control of the applicant. In view of the deteriorating health condition of the main applicant’s wife, Ms. Elvira Grajo, caused by industrial injury many years ago, please kindly give a favourable consideration...’

6. The Tribunal notes that the Department’s notification letter, inter alia, states the following:

   ·The decision can be reviewed.

   ·You may make an application for merits review of this decision with the Administrative Appeals Tribunal (AAT).

   ·An application for merits review of this decision must be given to the AAT within the prescribed timeframe.

   ·An application for merits review of this decision must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

   ·This review period is prescribed in law and an application for merits review may not be accepted after that date.

   ·You may only seek merits review of this decision with the AAT if you are physically present in Australia at the time this application for merits review is made.

7. The Tribunal finds that the letter of 5 June 2019 clearly conveyed the mandatory information and complied with the requirements of s.66(2)(d)(ii) of the Act. It contains sufficient information to determine the time within which to lodge the review application. The Tribunal finds that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 5 June 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 26 June 2019.

9. As the application for review was not received by the Tribunal until 1 July 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

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

    Antonio Dronjic
    Member