MILLAN (Migration)

[2018] AATA 4404

MILLAN (Migration) [2018] AATA 4404 (30 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Oliver Enriquez Millan

CASE NUMBER:  1827444

DIBP REFERENCE(S):  BCC2017/1617462

MEMBER:Katie Malyon

DATE:30 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2018 at 4:08 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – review application out of time – compassionate circumstances – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 30 July 2018 to refuse to grant the applicant, Mr Oliver Enriquez Millan, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal by Mr Millan’s representative on 19 September 2018.  For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

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. Material before the Tribunal indicates that Mr Millan was notified of the decision by letter dated 30 July 2018.  The letter was dispatched by email on 30 July 2018 to his appointed representative.  The Tribunal is satisfied that Mr Millan was notified of the decision in accordance with the statutory requirements.  As the delegate’s decision was emailed to Mr Millan’s authorised representative on 30 July 2018 that was the date on which he is taken to have been notified of the decision: accordingly, the last day for lodging the application for review was 20 August 2018. 

5. The Tribunal formed a preliminary view that the application for review was not a valid application as it was not lodged within the relevant time limit.  On 12 October 2018, the Tribunal wrote to Mr Millan inviting his comments on the validity of his review.  His representative responded on 25 October 2018.

6. In his response, Mr Millan’s representative outlines the circumstances which led to the review application being lodged out of time and attaches a number of documents including:

   ·a letter from Tina Inzitari, a director of Universal Granite Pty Ltd (the Company), Mr Millan’s  employer and sponsor.  The letter confirms that Ms Inzitari’s father was put into a nursing home in August 2017 having been diagnosed with dementia: her father’s condition stabilised.  However, on 21 July 2018, he suddenly became ill and was admitted to hospital.  His condition deteriorated rapidly and he passed away on 24 July 2018.  A copy of Ms Inzitari’s father’s Death Certificate with provided.

   Ms Inzitari states that her father’s death came as a shock to the whole family and it proved be a very challenging time for her and her husband as they were responsible for organising her father’s funeral and all formalities associated with it.  She adds that, during this period she and her husband were not at work and, unfortunately, some tasks remained unattended to including lodgement of Mr Millan’s review application. 

   Ms Inzitari requests the Tribunal show some compassion and leniency when reviewing this case as Mr Millan is most invaluable to the running of the Company’s business and he will be a replaceable;

   ·a copy of the nomination approval dated 4 June 2018 issued by the Department to the Company in respect of the position to be filled by Mr Millan; and,

   ·a copy of the Bridging E visa grant notice with unrestricted work rights issued by the Department to Mr Millan dated 9 October 2018; and,

   ·copies of Mr Millan’s educational qualifications as well as his recent IELTS test results.

7. The representative notes that Mr Millan has been working with the Company since 20 July 2015 and that he has been engaged to assist Mr Millan secure a favourable skill assessment from VetAssess as requested by the delegate.  In addition, the representative notes that, if Mr Millan leaves Australia and progresses his skill assessment whilst overseas, any future Subclass 482 visa application would, sadly, be subject to a 3 year limitation (on applying to return to Australia).

8. The Tribunal acknowledges the submission made by Mr Millan’s representative and the documentation accompanying his submission, in particular, the heartfelt letter from Ms Inzitari.  However, the Tribunal has no discretion and must apply the law.  For the following reasons, the Tribunal has found it has no jurisdiction to review the delegate’s decision as the review application was not made in accordance with the relevant legislation.

9. Material before the Tribunal indicates that Mr Millan was notified of the delegate’s decision to refuse his Subclass 457 visa application by letter dated 30 July 2018 dispatched by email to his representative. The Tribunal is satisfied that Mr Millan was notified of the decision in accordance with the statutory requirements.

10. The Tribunal finds that, in accordance with s.494C of the Act, Mr Millan is taken to have been notified of the delegate’s decision on 30 July 2018: therefore, the prescribed period to apply for review ended on Monday, 20 August 2018. As the application for review was not received by the Tribunal until 19 September 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

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

    Katie Malyon

    
    Member