House of Hoi An Pty Ltd (Migration)

[2019] AATA 136

House of Hoi An Pty Ltd (Migration) [2019] AATA 136 (13 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  House of Hoi An Pty Ltd

CASE NUMBER:  1833707

DIBP REFERENCE:  BCC2018/3135666

MEMBER:Rosa Gagliardi

DATE:13 January 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 January 2019 at 8:23pm

CATCHWORDS

MIGRATION – Nomination refusal – 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. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 27 September 2018, for a Subclass 482 Nomination under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 November 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. On 20 November 2018 the Tribunal wrote to Mr Hapugasdeniya in the interests of natural justice to advise that it appeared that the application made by House of Hoi An Pty Ltd is not a valid application as it was not lodged within the relevant time frame.  The time limit is 21 days from the day on which House of Hoi An Pty Ltd is taken to have been notified of the primary decision.  The primary decision was emailed to Mr Hapugasdeniya’s authorised recipient on 27 September 2018 and, on the basis that 27 September 2018 was the date on which House of Hoi An Pty Ltd is taken to have been notified, the last day for lodging the application for review was 18 October 2018.  Mr Hapugasdeniya was also advised that as the application was not received until 16 November 2018, it appeared to be out of time.

4. Mr Hapugasdeniya was given an opportunity to comment on the validity of the application in writing by 4 December 2018.  At the time of writing no response has been received.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 27 September 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on

   
   

   27 September 2018.  Therefore the prescribed period to apply for review ended on

   
   

   18 October 2018.

7. As the application for review was not received by the Tribunal until 16 November 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

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

   Rosa Gagliardi
   Member