Nielsen (Migration)

The applicant, Nielsen, sought review of a decision by the Department to refuse a Partner (Temporary) (Class UK) visa. The Administrative Appeals Tribunal (AAT) considered whether it had jurisdiction to hear the appeal, given that the application to the Tribunal was lodged out of time.

The primary legal issue before the AAT was whether it possessed the discretion to waive the statutory time limit for lodging an application for review, notwithstanding that the delay was attributed to human error on the part of the applicant. The AAT was required to determine if the notification of the Department's refusal decision complied with statutory requirements, which would then preclude any exercise of discretion regarding the time limit.

The AAT Member, Jennifer Cripps Watts, found that while the Tribunal had no reason to believe the out-of-time lodgement was anything other than human error, the statutory requirements for notification of the Department's decision had been met. Consequently, the AAT concluded it had no discretion to waive the time requirement for lodging the application for review.

Accordingly, the AAT determined that it did not have jurisdiction to hear the matter.