Koro (Migration)

[2019] AATA 203

Koro (Migration) [2019] AATA 203 (16 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Vilimaina Tuivaturogo Koro

CASE NUMBER:  1831987

DIBP REFERENCE(S):  BCC2015/2086714 BCC2015/208714

MEMBER:Denise Connolly

DATE:16 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 January 2019 at 10:48am

CATCHWORDS

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

LEGISLATION

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

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to s378 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 of a delegate of the Minister for Immigration on 1 March 2016 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 31 October 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 1 March 2016 and dispatched by email using the email address [specified].  The Tribunal has considered information from the Department’s records to ascertain whether the correct email address was used. Having considered the visa application the Tribunal is satisfied the applicant provided this email address for the purposes of receiving correspondence from the Department. She ticked yes to the question do you agree to the department communicating with you by fax, email or other electronic means? when she provided this email address.

4. The Tribunal wrote to the applicant seeking her comments on its preliminary view that the review application was lodged out of time and therefore the Tribunal has no jurisdiction to review the decision. The applicant provided written responses. In a letter dated 6 November 2018 the applicant stated that it was in November 2016 that she sought the help of the migration lawyer who accessed the Department’s records and provided to her a copy of the decision record dated 1 March 2016. She notes that the notification of decision bears the correct address and email. However she questions whether there is any evidence that the Department sent the letter. She denies receiving it. Also her husband wrote to the Tribunal on 6 November 2018 setting out his own personal circumstances and the history of his relationship with the applicant. He questions whether the Department has any evidence that the decision was emailed or sent by mail to the applicant. He asks that the Tribunal considered the review application on compassionate grounds.

5. The Tribunal has obtained a copy of the Department’s file. Included in it is a record entitled Enterprise Correspondence. It records that the refusal notification and decision record were emailed to the applicant on 1 March 2016 at 12:25. This record confirms that the email address, [specified], provided by the applicant in the visa application was used.

6. Based on all of the evidence before it the Tribunal is satisfied that the Department used the correct email address when notifying the applicant of the decision on 1 March 2016.  Having considered the content of the notice the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

7. The Tribunal has considered the request that it accepts the review application on compassionate grounds. However the Full Federal Court recently determined in Beni v MIBP [2018] FCAFC 228 that the Tribunal does not have the power to extend time for making an application for review to the Tribunal’s Migration and Refugee Division. As a result, review applications must be lodged within the timeframes prescribed in the Regulations in order to be valid.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 1 March 2016: s.494C of the Act. Therefore the prescribed period to apply for review ended on 22 March 2016.

9. As the application for review was not received by the Tribunal until 31 October 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

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

    Denise Connolly
    Member