Ngo (Migration)

[2017] AATA 1765

Ngo (Migration) [2017] AATA 1765 (11 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Ha Thi Thanh Ngo

VISA APPLICANT:  Mr Phuong Nam Nguyen

CASE NUMBER:  1718344

DIBP REFERENCE(S):  BCC2017/735938

MEMBER:Margie Bourke

DATE:11 September 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 11 September 2017 at 11:47am

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Review application out of time – Notification received in junk mail by email server

LEGISLATION

Migration Act 1958, s 65, 347, 494C

Migration Regulation 1994, r 4.10

CASES

Chowdhury & Ors v MIBP [2015] FCCA 2981
MIAC v SZKPO (2008) 166 FCR 84
Brar v MIAC [2012] FMCA 593

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 18 July 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 17 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.

4. The material before the tribunal indicates that the applicant was notified of the decision by letter dated 18 July 2017 and dispatched by email. The representative contacted the Department and the tribunal to advise that the Department notification was dated 18 July 2017 but was received by his email server and placed in the junk mail on 15 August 2017. The representative stated he was not aware of the notification until he saw the decision in his junk mail on 15 August 2017.  Subsequently the representative provided copies of two messages form Optus customer services that confirm the representative had experienced a problem with his modem and internet services.

5. The tribunal sent a letter to the applicant’s nominated representative dated 23 August 2017 at his nominated email address, inviting him to comment on the issue that the application for review appears to not be a valid application as it was not lodged within the relevant time limit.  The tribunal has considered the applicant’s and representative’s submissions.

6. The tribunal has considered the principle espoused in Chowdhury & Ors v MIBP [2015] FCCA 2981, that an applicant is taken to have received notification of the decision when the decision is transmitted by the relevant email server. The fact the applicant’s representative’s office was closed and the decision “bounced back” to the Department in that case was considered by the Court to be of no consequence as notification had been received.

7. The tribunal has considered the cases of MIAC v SZKPO (2008) 166 FCR 84 and Brar v MIAC [2012] FMCA 593, which support the proposition there is no error in notification of a primary decision if the decision and covering letter are sent by email to the email address provided by the applicant for the purpose of receiving documents.

8. The tribunal is satisfied the Department sent the notification letter and decision record to the applicant’s nominated representative at his nominated email address on 18 July 2017.

9. The tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 18 July 2017. Therefore the prescribed period within which the review application could be made ended on 8 August 2017. As the application for review was not received by the Tribunal until 17 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

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

    Margie Bourke
    Member