Mang (Migration)

[2017] AATA 2445

Mang (Migration) [2017] AATA 2445 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Anna Zing Tin Mang

CASE NUMBER:  1720748

DIBP REFERENCE:  ASB2014/392  

MEMBER:Rosa Gagliardi

DATE:22 November 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 22 November 2017 at 2:52pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347

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 31 July 2017, to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 6 September 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 31 July 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal wrote to the applicant, Ms Mang, in the interests of natural justice on

   
   

   12 September 2017 to advise that a preliminary assessment of the application indicated that it was not valid as it was not lodged within 21 days from the day on which the applicant was taken to have been notified of the primary decision.  The primary decision was posted to the applicant on 31 July 2017 and on this basis, 9 August 2017 was the date on which she was taken to have been notified. The last day for lodging the application for review was, therefore, 30 August 2017.  The application for review was not filed with the Tribunal, however, until 6 September 2017. 

6. Ms Mang was invited to comment on whether a valid application had been made.  On

   
   

   22 September 2017 the Tribunal received a response from Ms Mang stating that the reason she did not meet the prescribed period within which to lodge an application for review was because she is expecting her third child and is eight weeks pregnant.  She is suffering from severe morning sickness, evidenced by a medical practitioner, and this has affected her ability to concentrate and she has been forced to remain in bed for most of the day on a regular basis.  She also has two young children aged three years and eighteen months. 

   
   

   Ms Mang sought that the Tribunal consider the application for review as a valid application because she and her husband were very optimistic about their future life together in Australia and had a plan to save to buy a family home in which their children can grow.

7. The Tribunal has noted Ms Mang’s request for special consideration due to her circumstances now and during the prescribed period. The Tribunal has sympathy for her circumstances but does not have the ability to take into account the reasons why an application may not have been lodged within the prescribed period, even if they appear to be compelling.  Nor does the Tribunal have the discretion to vary the 21 day time limit.  The Tribunal is conscious that this decision will come as a disappointment to Ms Mang.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on

   
   

   9 August 2017. Therefore the prescribed period within which the review application could be made ended on 30 August 2017. As the application for review was not received by the Tribunal until 6 September 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

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

   Rosa Gagliardi
   Member