Hadi (Migration)

[2017] AATA 1708

Hadi (Migration) [2017] AATA 1708 (28 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Taha Hussain Hadi

CASE NUMBER:  1713582

DIBP REFERENCE(S):  BCC2017/1009274

MEMBER:Alison Mercer

DATE:28 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 28 July 2017 at 5:18pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 1 June 2017, to refuse to grant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 26 June 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 1 June 2017 that was dispatched by email to his nominated email address on the same date. The letter advised the applicant that (amongst other things) he could seek the review of the refusal at the Tribunal and that he had 21 calendar days after the date on which he was taken to be notified of the decision in which to do so.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 30 June 2017, the Tribunal wrote to the applicant to invite him to comment on whether he had made a valid application for review. Specifically, the Tribunal advised him that a preliminary view had been formed that his review application had not been validly lodged because it was received on 26 June 2017, and the prescribed period of 21 calendar days after he was notified ended on 22 June 2017.  He was invited to provide comments on this issue, and was advised that any comments received would be considered by a Tribunal Member who would determine whether the applicant’s review application was valid or not.

6. On 14 July 2017, the applicant provided comments by email.  In summary, he stated that he received the Department’s decision by email on 1 June 2017 but only read the email on 5 June 2017. He further stated that although he had almost 2 weeks after this to lodge the review application, he was unable to do so due to his really poor financial circumstances.  The applicant stated that he was not expecting his visa application to be rejected and was therefore not prepared for it at all.  He further stated that he was aware that he needed to lodge the review application within 21 days, as it was stated in the Department’s letter, but he simply could not afford the $1,650 review application fee.  The applicant stated that he had recently invested in a business which had just commenced trading in June 2017, and he had put all his funds into this and was in debt by the start of that month as a result.  Although he tried to get the funds, he was unable to do so.  He ultimately applied for a credit card for his business, with which to pay the funds, but this was only issued to him on 25 June 2017.  He stated that he could provide his financial records as evidence of his circumstances.  He asked the Tribunal to consider his circumstances, as well as the reasons he disagreed with his visa being refused, and allow his review to proceed. (The Tribunal notes that the applicant’s subclass 485 visa was refused by the Department because he had not sat a specified English test in the 3 years immediately before making his visa application, and that he provided a statement with his review application indicating that he was unable to obtain a booking for a test before he applied for the visa due to a family bereavement that necessitated him returning to Pakistan).

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 1 June 2017. Therefore, the prescribed period within which the review application could be made ended on 22 June 2017. As the application for review was not received by the Tribunal until 26 June 2017, 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.

8. The Tribunal notes the applicant’s reasons for why he did not lodge a review application before 25 June 2017, but the law provides no discretion to waive the requirement to have lodged the review application within the prescribed period, or to extend the prescribed period beyond 21 calendar days.  The Tribunal observes, however, that the review application could not have succeeded in any case, as the applicant acknowledged that he did not sit a specified English test in the specified period of 3 years before he made the subclass 485 visa application, and this is a mandatory requirement for the grant of a subclass 485 visa, in relation to which there is no discretion to take into account an English test undertaken after lodgment of the visa application.

   DECISION

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

   Alison Mercer
   Member