Piuaki (Migration)

[2018] AATA 5890

Piuaki (Migration) [2018] AATA 5890 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Fa'okula Piuaki

CASE NUMBER:  1900215

DIBP REFERENCE(S):  BCC2016/3822387

MEMBER:David McCulloch

DATE:1 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2019 at 8:26am

CATCHWORDS

MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – applicant was notified of the decision in accordance with the statutory requirements – application was lodged outside of the relevant prescribed period– no jurisdiction

LEGISLATION

Migration Act 1958, ss 347, 494C

Migration Regulations 1994, r 4.10,

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 19 September 2018 to cancel the applicant’s Special Category (Temporary) (Class TY) visa under the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 4 January 2019. 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 7 working 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 19 September 2018 and dispatched by mail.

4. The Tribunal wrote to the applicant on 18 January 2019 indicating that the primary decision was posted to the Arthur Gorrie Correctional Centre on 19 September 2018 and, on that basis, the 28 September 2018 was the date on which he is taken to have been notified of the decision. On that basis, the last day for lodging application for review was 10 October 2018. As the application was not received until 4 January 2019 it appeared to be out of time. The applicant was given the opportunity to respond to this preliminary view of the Tribunal.

5. The applicant in response indicated that he did not learn that his visa was cancelled until after he finished his time in the Correctional Centre in December 2018. The applicant indicates that he never received the notification at the Correction Centre. The applicant indicates his knowledge of other instances in the Correctional Centre where correspondence for other inmates went missing. The applicant also refers to the difficult consequences for him if the visa remains cancelled, including ties in Australia.

6. Information on the Departmental file shows that the notification of refusal was sent to the applicant at the Arthur Gorrie Correctional Centre.  The correspondence was sent by registered mail and a note on the file from a Departmental officer indicates Australia Post advising that the mail had been delivered to the address on 24 September 2018 and had been signed for.

7. The notification was sent to the last address known for the applicant and arrived at its destination.

8. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 28 September 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 10 October 2018.

10. As the application for review was not received by the Tribunal until 4 January 2019 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.

    David McCulloch
    Member