Purves (Migration)

[2018] AATA 851

Purves (Migration) [2018] AATA 851 (8 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ryan Purves

CASE NUMBER:  1803721

DIBP REFERENCE(S):  BCC2016/2446221

MEMBER:David Barker

DATE:8 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 08 March 2018 at 8:24am

CATCHWORDS
Migration – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Application not received within required timeframe

LEGISLATION
Migration Act 1958, ss 65, 347(1)(b), 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 16 January 2018 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 13 February 2018. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

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 16 January 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal wrote to the applicant on 16 February 2018 and invited comment from him in relation to a preliminary view that the application was not valid given it had not been lodged in the 21 days after the notification of the primary decision. The letter explained to the applicant that the primary decision was emailed to him on 16 January 2018 and, on the basis that 16 January 2018 was the date on which he is taken to have received notice of the decision, the last day for lodging the application was 6 February 2018.  It was stated that the application appeared out of time.  The letter indicated the Tribunal required a response, in writing, by 2 March 2018. 

6. On 26 February 2018, the Tribunal received a letter from the applicant,  which stated:

   I am not sure how to start this letter, I will start by apologising for my poor timing of submitting documents regarding my immigration case. I sincerely wish I had submitted the required documentation much earlier, meaning you would not be reading this now.

   The past 6 months have been a very stressful and trying time for my wife and I, we have had to deal with me breaking my collar bone following a hit and run accident, my wife giving birth to our 4th child. I was bitten by a redback spider shortly before Christmas 2017 whilst working. In early January I had an accident at work breaking a finger, which has further added to making it more difficult to work.

   The company I work for is a small business and they have been seeking a replacement delivery driver for the last 6 months with no luck finding an employee from the local Australian market. They have written a letter of support for me and my boss [name supplied] has also paid for my appeal to be heard, I would hope the support of a long established Australian business wishing to keep an employee to the extent they have gone to would carry some weight in favour for my case.

   I had calculated my appeal submission based on working days rather than calendar days, before I submitted my appeal I realised my error and went straight to Immigration in Sydney on the first working day to check my options they advised me to submit my appeal disregarding the breach in time hoping it would be heard.

   Disregarding everything I have just written, my wife [name supplied] and our 4 children are all Australian citizens and whilst we love each other greatly she refuses to leave Australia as that is her home. I do not want to be in a position where I have to pay maintenance for her and our children, as that is not being a Husband or Farther to our children. Also with a refusal for residency already any further application will likely also be refused.

   I wish to continue to contribute to the Australian economy by working and paying my taxes as I currently do, which will allow me to continue to be a Husband and a father to my children, as I believe this to be in the best interest of everyone involved directly and inderectly.

   I am going to contact the local MP for the [suburb identified] region to see if they are willing to lend support to my application in light of the difficulties their local business has in finding staff.

7. The Tribunal has considered the applicant’s submissions as to whether there is possible to consider his out of time application for a review of the Department’s decision to refuse his application for the Partner visa because of the range of circumstances he has described, including accidents, illness, the positive contribution he is making to his employer’s business and the fact his is married to an Australian citizen and they have four Australian citizen children.  The Tribunal acknowledges these factors, but unfortunately, the Tribunal has no discretion in this matter.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 16 January 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 6 February 2018. As the application for review was not received by the Tribunal until 13 February 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

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

   David Barker
   Member