PHAM (Migration)

[2017] AATA 1774

PHAM (Migration) [2017] AATA 1774 (12 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs THI HOAI BAC PHAM

CASE NUMBER:  1709596

DIBP REFERENCE(S):  BCC2015/3281172

MEMBER:Hugh Sanderson

DATE:12 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 12 July 2017 at 2:41pm

CATCHWORDS

Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Review application out of time

LEGISLATION

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

Migration Regulation 1994, 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 10 April 2017, to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 2 May 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 review application was filed by the applicant with the Tribunal on 2 May 2017. The Tribunal wrote to the applicant on 9 June 2017 noting that the primary decision of the Department was emailed to her on 10 April 2017. As that was the date she was taken to have been notified of the decision and as the time limit to file a review is 21 days the last day for lodging the application was 1 May 2017. As the application was lodged on 2 May 2017 it appeared the application was out of time. The applicant was invited to comment on this information.

5. The applicant responded on 7 July 2017 claiming as follows:

   ·She had been depressed and sick as she lost her computer and money;

   ·On 2 May 2017 she found her computer again and saw the Department’s refusal letter and decision and she immediately applied for a review of that decision with the Tribunal; and

   ·The applicant and the sponsor are in a genuine marriage and the sponsor will suffer if he is separated from her.

6. It is the responsibility of the applicant to be able to check her email at all times. She does not need to have access to her own computer to do this.

7. The Tribunal does not have a discretion to find it has jurisdiction if an application is filed outside the time limit prescribed by the legislation in which to file a review application. The applicant has acknowledged that the Department properly notified the applicant of their decision by sending it to her at her email address. This was the manner she advised the Department to communicate with her when she filed her application.

8. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 April 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The fact that the applicant may have been depressed and sick because she had lost her computer, which he subsequently found, and also some money, this does not allow the Tribunal to extend the time for which a review application can be filed. If the application is not filed within the prescribed period then the Tribunal does not have jurisdiction to consider the application.

10. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 10 April 2017. Therefore the prescribed period within which the review application could be made ended on 1 May 2017. As the application for review was not received by the Tribunal until 2 May 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

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

    Hugh Sanderson
    Member