Li (Migration)

[2021] AATA 3912

Li (Migration) [2021] AATA 3912 (19 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Yingli Li

CASE NUMBER:  2106789

HOME AFFAIRS REFERENCE:               BCC2017/873529

MEMBER:Lilly Mojsin

DATE:19 July 2021

PLACE OF DECISION:  Sydney

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

Statement made on 19 July 2021 at 3:05pm

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application for review lodged out of time – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 347, 494C
Migration Regulations 1994 (Cth), 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 9 March 2020 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 20 May 2021. 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 9 March 2021 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 29 June 2021, the Tribunal wrote to the applicant inviting comment that the application was not a valid application as it was not lodged within the relevant time limit. The applicant’s advisor responded on 13 July 2021, providing a statutory declaration from the applicant who advised that she had not received the refusal notification as they were expecting to receive this communication to be sent to her husband’s email. When she checked her email at a later date, she found the email. She claims that she did not authorise the communication by electronic means.

5. The applicant completed Form 47SP being Application for Migration to Australia by a Partner. At Q26 the applicant responded to the following question: “Do you agree to the Department communicating with you by fax, email or other electronic means”. The applicant responded “Yes” providing a fax and email address.

6. Therefore, the material before the Tribunal indicates that the applicant provided an email address for service and consented to communication with Department by email. The Tribunal is satisfied the email was forwarded to the applicant’s email, as acknowledged by the applicant, that she had received the email.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 March 2021: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 30 March 2021.

8. As the application for review was not received by the Tribunal until 20 May 2021, 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

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

   Lilly Mojsin
   Member