Khan (Migration)

[2018] AATA 2135

Khan (Migration) [2018] AATA 2135 (7 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shariff Khan
Mrs Kidist Gusta Adere

CASE NUMBER:  1810033

DIBP REFERENCE(S):  BCC2017/2464792

MEMBER:Katie Malyon

DATE:7 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 07 May 2018 at 8:51 am

CATCHWORDS
Migration – Skilled Independent (Permanent) visas – Subclass 189 Skilled – Independent – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 347, 378, 494C
Migration Regulations 1994, r 4.10

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration on 19 March 2018 to refuse to grant Skilled Independent (Permanent) visas under s.65 of the Migration Act 1958 (the Act).  

2. The review application was lodged with the Tribunal on 10 April 2018.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

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 the delegate’s decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements.

4. Material before the Tribunal indicates that the primary applicant, New Zealand national Mr Shariff Khan, was notified of the delegate’s decision by letter dated 19 March 2018 and dispatched by email.  The Tribunal is satisfied that Mr Khan was notified of the decision in accordance with the statutory requirements.  On the basis that 19 March 2018 was the date on which Mr Khan is taken to have been notified of the delegate’s decision, the last day for lodging the application for review was 9 April 2018.

5. The Tribunal formed a preliminary view that the delegate’s decision was not reviewable because the review application was lodged out of time and, on 20 April 2018, wrote to Mr Khan and the second named applicant - his wife, Mrs Kidist Gusta Adere - inviting them to comment on the validity of their application.  Mr Khan’s representative responded on 1 May 2018. 

6. In his response to the Tribunal, the representative assisting Mr Khan and Mrs Adere, states the reason why their review application was lodged out of time is largely because of the following events in their personal life:

   ·[Details deleted]. 

   The couple’s representative states that he is assisting them on a pro bono basis and requests the Tribunal accept the review application as valid. 

7. The Tribunal has had regard to the statement provided by the representative assisting Mr Khan and Mrs Adere.  However, whilst the Tribunal has sympathy for the circumstances faced by Mr Khan as well as Mrs Adere and it acknowledges that the review application was lodged only 1 day late, the Tribunal cannot alter the requirements of the legislation: it has no discretion and must apply the law.

8. The Tribunal finds that, in accordance with s.494C of the Act, Mr Khan is taken to have been notified of the delegate’s decision on 19 March 2018. Therefore, the prescribed period within which the review application could be made to the Tribunal ended 21 days later on 9 April 2018. As the application for review was not received by the Tribunal until 10 April 2018 it follows that the review application made by Mr Khan and Mrs Adere was not made in accordance with the relevant legislation and, as a result, the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Katie Malyon

   
   Member