Mirupasi (Migration)

[2017] AATA 1855

Mirupasi (Migration) [2017] AATA 1855 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vincent Mirupasi

Mr Vincent Mirupasi
Ms Vinnianne Mirupasi
Mr Julian Mirupasi
Ms Tanya Mirupasi
Ms Miriam Mirupasi
Mr Vincent Andawe Mirupasi
Ms Surea Mirupasi

CASE NUMBER:  1720755

DIBP REFERENCE(S):  BCC2016/807996

MEMBER:Jennifer Cripps Watts

DATE:3 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2017 at 4:00pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) – Subclass 820 (Spouse) – Notification of delegate decision – Review application invalid – Review application made outside of time limit

LEGISLATION

Migration Act 1958, s 65, 347(1)(b)

Migration Regulations 1994, r 2.55, 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 20 July 2017, to refuse to grant Partner (Temporary) (Class UK) visas 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 20 July 2017, which was sent and attached to an email of the same date.  The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The applicant wrote a letter to the Tribunal, dated 5 September 2017, in which he states that he was offshore at the time the Department sent the decision, involved in the Papua New Guinea elections, and notified the Tribunal in this letter that he wished to appeal the Department’s decision to refuse the visas.  The Department made its decision to refuse the visas on 20 July 2017.  According to Department movement records, the applicant was offshore from 18 May 2017 to 15 August 2017.  The applicant acknowledged in his letter of 5 September 2017 that he had access to the Department’s written decision, but that he did not access it until after the 21 day period within which he had to make the application for review had passed. 

6. The Tribunal sent the applicant a natural justice letter on 12 September 2017, inviting him to comment on the validity of his application for review in writing by 26 September 2017.  He was advised that the applications were not valid because the application fee had not been paid, the applicant did not appear to have been in the migration zone at the time the Department refused the visas or when the applicant notified the Tribunal that he wished to lodge an application for review on 6 September 2017 and he did not make the application in the approved form.  The applicant subsequently provided the Tribunal with a form, “Application for review – Migration”, signed and dated 19 September 2017. 

7. The Tribunal finds that in accordance with r.2.55 of the Regulations, the applicant is taken to have been notified of the decision on 20 July 2017. Therefore the prescribed period within which the review application could be made ended on 10 August 2017. As the application for review in the approved form was not received by the Tribunal until 19 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

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

   Jennifer Cripps Watts
   Member