Luo (Migration)

[2017] AATA 1760

Luo (Migration) [2017] AATA 1760 (30 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Siwei Luo

CASE NUMBER:  1716975

DIBP REFERENCE(S):  BCC2016/1615375

MEMBER:Nicola Findson

DATE:30 August 2017

PLACE OF DECISION:  Perth

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

Statement made on 30 August 2017 at 3:48pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Application not lodged within prescribed period

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 4.10, r 4.13

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 12 July 2017, to refuse to grant a Regional Employer Nomination (Permanent) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 3 August 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

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 this decision had to be made within 21 days after the applicant was notified of the decision in accordance with the statutory requirements. The review application also, pursuant to r.4.13 of the Regulations, had to be accompanied by the prescribed fee.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 12 July 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 10 August 2017, a Tribunal officer wrote to the applicant and invited her to comment as to whether she had made a valid application for review by 24 August 2017.  The Tribunal sent that letter to the applicant via the email address nominated by her in her review application.  The relevant part of the letter stated:

   I am of the view that your 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 you are taken to have been notified of the primary decision.  The primary decision was emailed to you on 12 July 2017 and, on the basis that 12 July 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 2 August 2017.  As the application was not received until 3 August 2017, it appears to be out of time.

   I am further of the view that your application is not a valid application as the application fee was not paid before the expiry of the time limit for lodging the application.  However, these are matters which must be determined by a Member.

6. The applicant did not respond to the Tribunal’s letter.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 12 July 2017. Therefore the prescribed period within which the review application could be made ended on 2 August 2017. As the application for review was not received by the Tribunal until 3 August 2017 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.

   Nicola Findson
   Member