KUNOVSKA (Migration)

[2018] AATA 2067

KUNOVSKA (Migration) [2018] AATA 2067 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mirjana Kunovska

CASE NUMBER:  1808041

DIBP REFERENCE(S):  BCC2016/4158349

MEMBER:Helena Claringbold

DATE:8 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 May 2018 at 2:01pm

CATCHWORDS

Migration – Partner (Provisional) (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Incorrect applicant – Lodgement identifying primary visa applicant

LEGISLATION

Migration Act 1958, ss 5(1), 65, 338, 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 13 January 2018, to refuse to grant a Partner (Provisional) (Class UF) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

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 70 days after the applicant was notified of the decision in accordance with the statutory requirements.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 13 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 13 January 2018. Therefore the prescribed period within which the review application could be made ended on 26 March 2018.

6. The review application was lodged with the Tribunal on 23 March 2018. On 27 March 2018, the Tribunal wrote to the applicant via her migration agent.  She was advised that the primary visa applicant had been incorrectly entered on the review application form, as primary review applicant. The applicant was told that the person entitled to apply for review, is the primary review applicant who is, the primary visa applicant’s sponsor.

7. On 27 March 2018, at 6.52pm, the applicant’s migration agent emailed the Tribunal.  She apologised for the incorrect details being entered on the review application form.  In the same email she provided the details of the Mr Blagoja Taneski, the primary visa applicant’s sponsor.

8. On 23 April 2018, the Tribunal wrote to the applicant via her migration agent.  The Tribunal   invited the applicant to comment on the validity of the review application and for comment to be with the Tribunal by 7 May 2018. The applicant was advised that the person who is entitled to apply to the Tribunal for review is Mr Blagoja Taneski, the sponsor.

9. On 2 May 2018, the applicant’s migration agent responded to the Tribunal.  She stated that the application for review was lodged on 23 March 2018. She informed the Tribunal that she responded to the Tribunal’s email of 27 March 2018 at 6.52 pm on the same day and provided the details of the review applicant. She claimed that the incorrect details provided on the review application form is a human error however the Tribunal’s email was responded to in a reasonable manner.

10. As the decision that is the subject of the review application is a decision covered by s.338(2), the application for review could only be made by the non-citizen who is the subject of the decision. In the present case, the review application was made by the primary visa applicant. As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Helena Claringbold
    Member