Ha (Migration)

[2023] AATA 1373

Ha (Migration) [2023] AATA 1373 (1 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Minh Nguyet Ha

REPRESENTATIVE:  Mrs Catherine Coleman

CASE NUMBER:  2214297

HOME AFFAIRS REFERENCE(S):          BCC2020/1742806

MEMBER:Joseph Lindsay

DATE:1 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 1 February 2023 at 12:14pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – review application lodged out of time – extenuating circumstances – no discretion – No jurisdiction

LEGISLATION
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 Home Affairs on 5 September 2022 to refuse to grant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 27 September 2022. 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 reg 4.10 of the Migration Regulations 1994 (Cth) (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 September 2022 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 wrote to the applicant’s representative about these issues. The Tribunal has considered the response from the applicant’s representative as follows.

   Thank you for the opportunity to provide submissions regarding validity of the application for review for Minh Nguyet Ha.

   I confirm that the Department of Home Affairs (DHA) sent the refusal notification and decision record on Monday, 5 September 2022. This email was received after hours at 5.31pm.

   The refusal notification letter dated 5 September 2022 advises;

   “…. 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 receive this letter….. As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted”.

   Given this was not seen until the following day and the wording is such that it was taken to be received at the end of the day it was transmitted. I understood this to be close of business 6 September 2022, leaving the final day to fall on 27 September 2022.

   Extenuating circumstances

   Further to the above explanation, at the time of receiving the email I was on leave following major chest surgery at the Gold Coast Private Hospital. I had a very large mediastinal tumour removed from my diaphragm which required 2 weeks recovery in intensive care and a further 10 days in the general ward (under the care of Dr Cheng He, cardiothoracic surgeon). I was released into the care of my family from early September on extensive pain relief and other medications. It took a further 6 weeks to recover at home on limited capacity at work (I was able to sit for 15 to 30 minutes at a time for 1 hour a day due to crippling pain in the month of September and early October). At the time I had no assistance from support staff as I am finding it difficult to recruit in the current market.

   I recall carefully calculating the dates and diarising 27 September 2022 as the final date to lodge the appeal.

   Given I have no history of lodging an appeal out of time, I believe my judgement and calculation was likely clouded due to the medication I was on, and my inability to focus due to severe pain.

   I am dismayed at the thought I may have lodged out of time, depending on your interpretation of the time the letter is received from DHA.

   If you are able to make a favourable consideration on compelling and compassionate circumstances, I would be greatly appreciative. I am able to provide medical letters/reports/photos verifying my procedure and recovery should you require.

5. The Tribunal accepts that the applicant’s representative believed that the prescribed period to apply for review ended on 27 September 2022. However, the Department’s email dated 5 September 2022 to the applicant’s representative makes clear that she was taken to have received the Department’s decision on that same day - 5 September 2022.

6. Regulation 4.10 of the Regulations is clear:

   Reg 4.10    Time for lodgment of applications with Tribunal (Act, s347)

   (1)  For paragraph 347(1)(b) of the Act, the period in which an application for review of a Part 5-reviewable decision must be given to the Tribunal:

   (a)  if the Part 5-reviewable decision is mentioned in subsection 338(2) or (7A) of the Act — starts when the applicant receives notice of the decision and ends at the end of 21 days after the day on which the notice is received (Tribunal emphasis).

7. The Tribunal finds that the applicant, through their appointed representative, is taken to have been notified of the decision on 5 September 2022 under s 494C of the Act. Therefore the prescribed period to apply for review ended on 26 September 2022.

8. The Tribunal accepts that the applicant’s representative has faced some difficult circumstances, including in respect to their health and in respect to staffing issues.

9. The Tribunal is very sympathetic to the applicant’s representative’s circumstances. Regretfully, the Tribunal does not have the discretion to change the statutory time limits or simply to make a decision that the Tribunal has jurisdiction when it is reasonably clear that it does not.

10. As the application for review was not received by the Tribunal until 27 September 2022 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.

    Joseph Lindsay
    Member