Ossi (Migration)

[2019] AATA 52

Ossi (Migration) [2019] AATA 52 (8 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tobechukwu Uchenna Ossi

CASE NUMBER:  1832671

DIBP REFERENCE(S):  BCC2017/2520529

MEMBER:James Silva

DATE:8 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2019 at 6:30pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – review application out of time – applicable fee not paid – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347, 494C
Migration Regulations 1994, rr 4.10, 4.13

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration on 9 October 2018 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 6 November 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 9 October 2018 and dispatched by email sent to the address that he provided for the purpose of correspondence. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 9 October 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 30 October 2018.

4. On 9 November 2018, the Tribunal wrote to the applicant, via his representative, inviting him to comment on its preliminary view that the application for review was not valid, as it was not lodged within the relevant time limit. The Tribunal received no response. The Tribunal received several telephone calls from the applicant asking for a letter for Medicare and enquiring about the progress of the case generally (on 22 and 26 November 2018), and a call from the representative about the applicant’s inability to pay the prescribed fee. These did not address whether the application had been lodged within the prescribed period.

5. A potential further issue arises in relation to the payment of the prescribed fee. Pursuant to s.347(1) of the Act and r.4.13 of the Migration Regulations 1994, this application had to be given to the Tribunal within the prescribed period, as specified in s.347(1)(b) and r.4.10, and accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. The applicant provided credit card details on the application form, but did not stipulate an exact amount to authorise the payment. He requested a fee reduction, completed Form M11 and provided some supporting documentation. The Tribunal unsuccessfully attempted to contact the representative to seek guidance on whether the applicant intended to pay the full or a reduced fee within the prescribed period. He later advised that the applicant was unable to pay the fee. Given the Tribunal’s finding above that the application is invalid because it was not lodged within the prescribed period, it is unnecessary for it to further consider whether it is also invalid due to the non-payment of the prescribed fee or a reduced amount.

6. As the application for review was not received by the Tribunal until 6 November 2018 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

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

   James Silva
   Member