Luan (Migration)

[2018] AATA 2869

Luan (Migration) [2018] AATA 2869 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Xinmin Luan

CASE NUMBER:  1816760

DIBP REFERENCE(S):  BCC2018/2041332 PNJ

MEMBER:Mary Urquhart

DATE:29 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 29 June 2018 at 2:59pm

CATCHWORDS
Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Review application out of time

LEGISLATION
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, rr 2.55, 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 14 May 2018 to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 8 June 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 13 June 2018 the Tribunal wrote to the applicant inviting comment on the validity of the application for review of a decision to refuse to grant a Visitor (Class FA) visa. The letter set out the view that the application is not a valid application as it was not lodged within the relevant time limit. The time limit is 21 days from the day on which the applicant is taken to have been notified of the primary decision. The primary decision was emailed to the applicant on 14 May 2018 and, on the basis that 14 May 2018 was the date on which the applicant is taken to have been notified, the last day for lodging the application for review was 4 June 2018. As the application was not received until 8 June 2018, it appears to be out of time. However, the letter indicated that the above is a matter to be determined by a Member.

4. The letter stated that if the applicant wished to make any comments on whether a valid application has been made, he is invited to do so, in writing, by 27 June 2018. Upon receipt of any response, the application, with any comments made would then be referred to a Member to make a decision on the application. No response was received by 27 June 2018.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 May 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 14 May 2018: r.2.55 of the Regulations. Therefore the prescribed period to apply for review ended on 4 June 2018.

7. As the application for review was not received by the Tribunal until 8 June 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.

   Mary Urquhart
   Member