Nopia (Migration)

[2018] AATA 67

Nopia (Migration) [2018] AATA 67 (8 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peter James Nopia
Ms Cinderella NOPIA
Ms Sophia Angela NOPIA
Ms Althea Julienne NOPIA

CASE NUMBER:  1729994

DIBP REFERENCE(S):  CLF2016/97363

MEMBER:Linda Holub

DATE:8 January 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2018 at 1:52pm

CATCHWORDS

Migration – Other Family (Residence) (Class BU) – Subclass 836 (Carer) – Timeframes not met – Applicant’s representative did not receive notifications from the Tribunal –  No jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

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 1 November 2017, to refuse to grant Other Family (Residence) (Class BU) visas under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 29 November 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 1 November 2017 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 wrote to the applicant on 12 December 2017 indicating that it appeared that they had not made a valid application as it was not lodged within the relevant time limit.  The applicants were provided with an opportunity to provide any comments that they wish to make as to whether a relevant application had been made and were given until 27 December 2017 to do so.  No formal response to that letter was received by the Tribunal.  The applicant’s representative called the Tribunal to seek advice regarding what documents should be submitted to resolve the issue of the late application. He indicated that he had not receive the notification of the decision from the Department of Immigration until 27 November 2017 because of problems with his telephone.

6. Prior to the letter being sent to the applicant, the Tribunal received a Statutory Declaration from the applicant’s representative stating that the reason that the review application was late is because he did not receive the notification from the Department of Immigration until the evening of Friday, 24 November 2017. The reason he did not receive it until that time was because of a malfunction in his smart phone and it did not download all his emails from around mid-October. It further states that he was unable to check his email since 2 November 2017 because his wife had been in hospital for an operation and since her release he was attending a dialysis centre, medical appointments and he had a number of issues to contend within the first three weeks of November.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 1 November 2017. Therefore the prescribed period within which the review application could be made ended on 22 November 2017. As the application for review was not received by the Tribunal until 29 November 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.

   Linda Holub
   Member