Hoang (Migration)

[2018] AATA 3347

Hoang (Migration) [2018] AATA 3347 (26 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Tuan Hoang

CASE NUMBER:  1817937

DIBP REFERENCE(S):  BCC2016/4162759

MEMBER:David Barker

DATE:26 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 July 2018 at 7:13am

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – review application out of time – financial hardship – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 338, 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 25 May 2018 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 19 June 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 25 May 2018 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 on 29 June 2018 and invited comment from him in relation to a preliminary view that the application was not valid given it had not been lodged in the 21 days after the notification of the primary decision. The letter explained to the applicant that the primary decision was emailed to his authorised recipient on 25 May 2018 and, on the basis that 25 May 2018 was the date on which he is taken to have received notice of the decision, the last day for lodging the application was 15 June 2018.  It was stated that as the review application was not received until 19 June 2018, the application appeared out of time.  The letter indicated the Tribunal required a response, in writing, by 13 July 2018. 

5. On 2 July 2018, the Tribunal received an email from the applicant’s authorised recipient & authorised representative,  which referred to documents attached to the email, which included:

   ·a statutory declaration from the applicant seeking for a  time frame extension;

   ·a relationship statement from the applicant;

   ·a relationship statement from the sponsor;

   ·a marriage certificate; and

   ·a medical letter regarding the sponsor.

6. The Tribunal has reviewed these documents. The applicant’s statutory declaration in relation to a time frame extension declares:

   STATUTORY DECLARATION
   Re: SEEKING TIME EXTENSION TO LODGE A REIVIEW TO AAT
   Under compelling reasons

   I Minh Tuan HOANG of [address supplied] in the state of New South Wales, so solemnly declare the following statement:

   1.I was born on [date provided] in Hai Duong, VIETNAM

   2.I have completed year 12 in Vietnam and later I have completed an English Course at Holmes Institute in Sydney and following I had started my studies for my Diploma of Business at the Australian College of Vocational Studies.

   3.I arrived to Australia on 22/12/2012 under a student visa subclass 573

   4.On [date provided] I married to my wife [name and date of birth provided] We currently do not have any children yet.

   FINANCIAL HARDSHIP LEADING TO a DELAY IN LODGING THE REVIEW APPLICATION TO AAT

   5.On 07/12/2016,1 lodged the Partner via application- subclass 820

   6.On 25/05/2018, my Partner visa was refused and I was provided with a letter of refusal Partner visa application.

   7.At that time, I was advised by my lawyer to lodge the review of the Decision to refuse the Partner visa to AAT prior to 15/06/2018 and the cost for lodging the review visa application to AAT was $1,731.00

   8.Unfortunately, I felt into the situation of hardship at that time for the following reasons:

   a)Firstly, I lost the job in March 2018 and I earned no income after that time. I have been looking for job until present but no job was available at the time. My wife and I are living dependently on our saving from my previous job and saving period and the benefit in which my wife, [name provided] received from Centerlink

   b) Secondly, my wife has been suffering with medical condition. In addition, she was addicted to drug use and gambling. Therefore, she spent money on her addiction which I tried to stop her as I cared for her wellbeing. We did not have sufficient      

   c)Thirdly, I called my parents in Vietnam and asked for help to pay for the sudden cost of this court fee. My parents had to borrow from other friends in Vietnam and the accumulated time for collection of the full sum, then they needed time to transfer money over to Australia. Therefore, it was a bit late to receive the money for the court fee from Vietnam. As soon as I received it, I attended my lawyer's office and signed the application to pay for the court fee

   d)Otherwise we will be forced to live ocean apart in which our life and relationship would be devastated for us both.

   SEEKING compelling reason for extension of the time frame:

   a)I understand that s37(2.1) that the decision maker must lodge the Section The decision maker must lodge the Section 37 documents with us within 28 days after receiving notice of the application or within such further time as we allow sub section 37(1): In this case I had lodged my application on 19/06/2018 (25 days) within the time frame of 28 days

   b)Subsection 2.3: A decision maker may apply to have the 28 day time period extended. An application must be made to us if the decision maker will not be able to lodge all or some of the documents within the 28 days period. An application to extend the time period must be made before the 28 day period expires.

   c)I am seeking compelling reason that my wife and I have been living together as husband and wife for many years. We love each other and we could not live ocean apart Therefore I am asking Yours Member to take into consideration of our relationship, our marriage and my wife's medical condition to grant us with extension time to lodge the review for the decision to refuse the Partner visa application.

7. Section 338(2) is the relevant provision to establish the application time limits for the lodgement of an application for a review of a decision to refuse to grant a non-citizen a visa where, amongst other things, the visa could be granted to a non-citizen in the migration zone and the applicant is in the Australian migration zone when they applied for the visa.

8. Section 347(1)(b)(i) of the Act requires the application for the review  be given to the Tribunal within the prescribed period, which for a Part 5-reviewable decision covered by subsection 338(2), being a period ending not later than 28 days after the notification of the decision. However Regulation 4.10(1)(a) further clarifies the applicable time frame and provides that for paragraph 347(1)(b) of the Act, and for a Part 5-reviewable decision covered by subsection 338(2), the period in which the application for review must be given to the Tribunal 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.  There is no provision in the Act or Regulations that allows for an extension to these time limits if the Department’s decision was appropriately notified to the visa applicant.

9. The Tribunal has considered the applicant’s statutory declarations and other documents provided in response to the natural justice sent to him inviting his comment about whether the Tribunal has jurisdiction to undertake the review he has requested of the Department’s decision to refuse his application for a partner visa. The Tribunal is not satisfied the reasons put forward by the applicant, which appear to relate to the lodgement of documents, rather than the lodgement of the actual review application, are relevant to the legislative criteria the Tribunal needs to consider in order to determine whether the review application is valid.

10. The Tribunal acknowledges the difficult circumstances identified by the applicant, both as to the difficulty raising funds for the review application and also as to the impact on him and the sponsor if they need to be apart because his application for the onshore partner visa is refused.  The Tribunal acknowledges these and the other factors raised in documents provided by the applicant in response to the natural justice letter sent to him on 29 June 2018, but unfortunately the Tribunal has no discretion in this matter.

11. The Tribunal finds that the applicant is taken to have been notified of the decision on 25 May 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 15 June 2018.

12. As the application for review was not received by the Tribunal until 19 June 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

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

    David Barker
    Member