Peddireddy (Migration)

[2017] AATA 1718

Peddireddy (Migration) [2017] AATA 1718 (8 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chaitanya Pardhasaradhi Peddireddy

CASE NUMBER:  1714671

DIBP REFERENCE(S):  BCC2017/1488664

MEMBER:Alison Mercer

DATE:8 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 08 August 2017 at 3:16pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Application made out of time

LEGISLATION

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

Migration Regulations 1994, Schedule 2, r 4.10

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 9 June 2017, to refuse to grant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 9 July 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 9 June 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 13 July 2017, the Tribunal wrote to the applicant via email to invite him to comment on the issue of whether he had made a valid application for review. The Tribunal advised the applicant that a preliminary view had been formed that he had not, as the relevant time limit for lodgment was 21 calendar days from the date on which he was notified of the primary decision, and this period expired on 30 June 2017, as he was notified of the primary decision by email on 9 June 2017.  The applicant was invited to comment on this issue by 27 July 2017, and was advised that any comments received would be provided to a Tribunal Member for consideration before he or she determined whether the review application had been validly made or not.

6. On 27 July 2017, the applicant provided a written statement to the Tribunal in which he indicated that he made the subclass 485 visa application himself without the assistance of a migration agent, and it was later refused as he did not achieve the required scores in his English test.  The applicant said that he nominated his email address for the Department to correspond with him, and that he checked this address regularly but did receive notification of the primary decision on 9 June 2017.  The applicant stated that he only saw the email from the Department notifying him of the refusal decision on 9 July 2017, and was completely shocked.  He realised that the 21 day time frame for lodging the review application had expired but he decided to proceed with the review application as he still held a valid visa. He stated that this occurred as the Department email went to his spam folder but that he wished the Tribunal to accept his review application, at which point he would provide further evidence of his English proficiency.

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 9 June 2017. The Tribunal is satisfied that the Department’s notification letter and refusal decision were sent to the email address nominated for this purpose by the applicant. While the Tribunal notes the applicant’s explanation that the email was not read by him until 9 July 2017 as it appears that it went into the spam folder of his email account, s.494C(5) provides that the applicant is taken to be notified of a decision by email at the end of the day on which the document was transmitted, regardless of whether he actually read the document on that date or not. Therefore, the notification date is 9 June 2017.

8. Accordingly, the prescribed period within which the review application could be made ended on 30 June 2017. As the application for review was not received by the Tribunal until 9 July 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.  The Tribunal has no legal power to waive the requirement to lodge the review application within the prescribed period, nor does it have any power to extend the period in which the review application can be lodged.

   DECISION

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

   Alison Mercer
   Member