Nganga (Migration)

[2017] AATA 2621

Nganga (Migration) [2017] AATA 2621 (28 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Valnoresse Fan-Nareif Patrick Nganga

CASE NUMBER:  1721326

DIBP REFERENCE(S):  BCC2016/4334268

MEMBER:Robert Wilson

DATE:28 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 28 November 2017 at 11:57am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) – Application out of time – Outside of the prescribed period

LEGISLATION
Migration Act 1958 ss 65, 347(1)(b), 494C
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 7 August 2017, to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 11 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 Tribunal forwarded a letter to the applicant dated 9 October 2017 as follows.

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Partner (Temporary) (Class UK) visa.

   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 posted to you on 7 August 2017 and, on the basis that 16 August 2017 was the date on which you are taken to have been notified, the last day for lodging the application for review was 6 September 2017. As the application has not received until 11 September 2017, it appears to be out of time. However, this is a matter which must be determined by a Member.

   If you wish to make any comments on whether a valid application has been made, you are invited to do so, in writing by 1 November 2017.  Your application, with any comments you make, will then be referred to a Member to make a decision on your application. If the Member decides that you have not made a valid application, you will be given a written statement of decision and reasons. 

   If you have any questions please email mrddivision @aat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333.  For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.

5. The letter was posted 9 October 2017 to the address provided by the applicant.

6. On 1 November 2017 the applicant called regarding the natural justice letter above and the clerk who received a call at the Administrative Appeals Tribunal agreed to an extension of time. He said comments were now due on 15 November 2017.  As discussed in the call the Tribunal officer emailed the applicant with a copy of the notes of the above conversation, and in his email he said all future correspondence will still be by post. 

7. At the time of writing this decision, 28 November 2017, no further information has been provided to the Tribunal.

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 August 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that in accordance with the s.494C of the Act, the applicant is taken to have been notified of the decision on 16 August 2017. Therefore the prescribed period within which the review application could be made ended on 6 September 2017. As the application for review was not received by the Tribunal until 11 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

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

    Robert Wilson
    Member