Nielsen (Migration)

[2017] AATA 1754

Nielsen (Migration) [2017] AATA 1754 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ole Nielsen

CASE NUMBER:  1700527

DIBP REFERENCE(S):  BCC2015/644512

MEMBER:Jennifer Cripps Watts

DATE:23 August 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2017 at 4:46pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347

Migration Regulations 1994, Schedule 2, r 4.10, r 2.55

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 13 December 2016, 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 10 January 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 13 December 2016 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal sent the applicant a natural justice letter, dated 1 August 2017, requiring a response from him by 15 August 2017.  The applicant responded to the letter within time and set out the reasons why he lodged his application with the Tribunal out of time.  He says that he received the email attaching the Department’s decision to refuse the visa in mid-December 2016 and quickly read through it.  He said he decided not to tell his partner then but after the holiday as it was close to Christmas and she is a very emotional lady. 

6. The applicant acknowledges in his response that the time limit for seeking review of the Department’s decision is 21 days and this was in the letter he received, but that he made a mistake that was simple human error in relying on information he saw on the Tribunal’s website subsequently, where it says, “The time limit for making an application to the AAT is usually 28 days after you receive the decision you want us to review.  However, for some decisions it’s longer and for others it’s shorter.  The time limit is usually stated in the decision you want us to review”.  The applicant said he wrongly thought he had 28 days and lodged the application for review within 28 days.

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 13 December 2016. Therefore the prescribed period within which the review application could be made ended on 3 January 2017. As the application for review was not received by the Tribunal until 10 January 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.

8. The Tribunal has no reason to think that lodging the application to the Tribunal out of time was anything other than human error on the part of the applicant.  However, the Tribunal, in finding that the Department’s decision to refuse the visa was notified in accordance with the statutory requirement, has no discretion to waive the requirement.

   DECISION

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

   Jennifer Cripps Watts
   Member