Patel (Migration)

[2017] AATA 1302

Patel (Migration) [2017] AATA 1302 (17 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mihir Patel

CASE NUMBER:  1710179

DIBP REFERENCE(S):  CLD201720358703 P17/03075802

MEMBER:Nicole Burns

DATE:17 July 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 17 July 2017 at 1:03pm

CATCHWORDS

Migration – Visitor (Class FA) visa – Second review application – Incorrect review applicant – Lodged out of time – Tribunal has no discretion

LEGISLATION

Acts Interpretation Act 1901, s 36(2)

Migration Act 1958, ss 65, 338(7), 347(2), 494C(5)

Migration Regulations 1994, Schedule 2, r 4.10(1)(c)

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 3 March 2017, to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(7) of the Act.

2. The review application was lodged with the Tribunal on 11 May 2017. For the following reasons, the Tribunal has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(7), an application for review may only be made by the relative referred to in the subsection concerned: s.347(2)(c).

4. In this case the visa applicant applied for review on 11 May 2017. In letter dated 12 May 2017 (sent by email to the applicant) and a follow up letter dated 19 May 2017 the Tribunal wrote to the applicant advising that it did not appear that he had the right to review and requested he lodge an amended application for review form with the correct review applicant by 19 May 2017 and by 22 May 2017 respectively. On 23 May 2017 the Tribunal received an amended review application form from the visa applicant naming his Australian citizen child (Ms Young) as the review applicant. Whilst Ms Young has standing to apply for review, this second review application was lodged out of time. Specifically, pursuant to s.347(1)(b)(ii) of the Act and r.4.10(1)(c) of the Migration Regulations 1994, an application for review of this decision had to be made within 70 days after the applicant was notified of the decision in accordance with the statutory requirements. The material before the Tribunal indicates that the applicant was notified of the decision by email on 3 March 2017 and in accordance with s.494C(5) of the Act, the applicant is taken to have been notified of the decision by letter dated 3 March 2017 and dispatched by email. The prescribed period ends at the end of 70 days after the day on which the notice is received. Therefore the prescribed period within which the review application could be made ended on 15 May 2017, as the last day of the prescribed period fell on a Saturday (as per s.36(2) of the Acts Interpretation Act 1901).

5. Although the first review application was lodged in time – that is on 11 May 2017 – the application was not valid because the visa applicant did not have standing for review.  He lodged a further review application identifying his daughter as the review applicant, who has standing, but this application was not received in time (being received on 23 May 2017).

6. On 1 June 2017 the Tribunal wrote to the visa applicant inviting his comment on the validity of the review application by 15 June 2017.  In that letter the Tribunal noted that the person who is entitled to apply for review is the visa applicant’s parents, spouse, de facto partner, child, brother or sister and who is also an Australian citizen or permanent resident; the visa applicant is not such a person; the Tribunal made two attempts to advise the applicant of this mistake in his application; and the amended review application was received after the timeframe had elapsed to lodge a valid application for review.  

7. On 15 June 2017 the Tribunal received a submission from the applicant’s newly appointed representative. In it he argues that because the Tribunal gave the visa applicant extensions of time (in writing and verbally) to amend the review application, the Tribunal treated and accepted the review application as an application submitted within the statutory time frame but which simply required an amendment to correctly record that the review applicant was the visa applicant’s daughter, not the visa applicant himself. He submits further that if the Tribunal had not treated the review application as an application for the purposes of s 347 of the Migration Act 1958 (Cth), then no extension of time would have been allowed.  It is submitted that the review application as subsequently amended should be treated as a valid application and the visa applicant, through his daughter, should be permitted access to review noting that he has not had the opportunity to see his daughter since she was born (on 31 March 2015) and it is only reasonable that he should be afforded an opportunity to present his case.

8. It is also submitted that from 13 May 2017 to 22 May 2017 the visa applicant was away on business travel and he did not have email contact during that period (a letter from his employer has been provided confirming that was the case).  As soon as he returned and saw the letter from the Tribunal about standing he contacted the Tribunal and spoke to an officer who advised him over the phone that he would be given a further 24 hours to provide the amended review application, which he did by 23 May 2017. 

9. The Tribunal has considered these submissions about the validity of the review application.  It has sympathy for the visa applicant in what appears to be a simple mistake in naming an incorrect review applicant when the review application was first lodged on 11 May 2017 (within time).  It also accepts that in subsequent communication with Tribunal officers they may have erroneously led him to believe he had additional time in which to amend the review: including in communication that took place after the 15 May 2017.  Nonetheless, the Tribunal has no discretion to extend the timeframe in which to lodge a review application, the date of which is indicated in the notification of a decision to refuse to grant the visa applicant a visa by the Department of Immigration and Border Protection (DIBP).  Therefore whilst the initial review application received by the Tribunal on 11 May 2017 was within the prescribed timeframe, the wrong person had applied for review.  The second review application received on 23 May 2017 identified the correct person who is entitled to apply for review, however that application was received out of time. 

10. As the decision that is the subject of the review application is a decision covered by s.338(7), the application for review could only be made by the relative referred to in that subsection. The person who is entitled to apply for review is the parent/spouse/ de facto partner/ child/brother/sister of the visa applicant who is an Australian citizen or permanent resident, and whose particulars were included in the visa application. In the present case, the review application was made by the visa applicant, who is not a relative of the visa applicant as specified in s.347(2). As such, the application for review is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in this matter.

    DECISION

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

    Nicole Burns
    Member