Reid (Migration)

[2021] AATA 3008

Reid (Migration) [2021] AATA 3008 (27 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Colin William George Reid

CASE NUMBER:  2107911

DIBP REFERENCE(S):  BCC2020/2434967

MEMBER:Tamara Hamilton-Noy

DATE:27 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 July 2021 at 11:44am

CATCHWORDS

MIGRATION – Prospective Marriage (Temporary) (Class TO) visa – Subclass 300 (Prospective Marriage) – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 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 30 November 2020 to refuse to grant a Prospective Marriage (Temporary) (Class TO) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 18 June 2021. 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 70 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 30 November 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 7 July 2021, an officer of the Tribunal wrote to the applicant stating that it appeared his application was not a valid application as it was not lodged within the relevant time limit.  The Tribunal’s correspondence noted that the time limit is 70 days from the day on which the applicant was taken to be notified of the primary decision.  As the applicant’s authorised representative had been emailed the primary decision on 30 November 2020, he was taken to have been notified of the decision on 30 November 2020 and the last day for lodging an application for review was 8 February 2021.  As the application was not received until 18 June 2021, it appeared to be out of time.   The Tribunal’s correspondence additionally noted that it appeared that the applicant had previously made an application for a review of the same primary decision, that the case number for that review was 2103378 and that the applicant had been notified of the outcome of that decision on 18 June 2021.  The applicant was invited to comment on the validity of the application for review.

5. On 7 July 2021 the applicant sent the Tribunal a photo of a ‘Registered Post – Lodgement Receipt’ stamped on 17 December 2020 and addressed to the Department of Home Affairs.   On the same date, the applicant wrote to the Tribunal and stated that it was correct he had already made an application to the Tribunal and it was ruled that he had submitted to the wrong part of the Department, had not paid the correct amount of money, that it was outside of their area and that he was late by just over a month.  He was told to file with the Department which he did. The applicant stated that he has lodged a receipt from the post office where he had sent personal details to the Home Affairs Office requesting a refund, which was sent twice in December. He had forgotten to send some information in the first request and so resent the request.  Over Christmas and the New Year he was hoping to receive a reply and he called Home Affairs many times and was put on hold.  He still doesn’t know where his documents are or if they were received.  When talking to Home Affairs he was advised of delays due to COVID-19 and, when he realised he was not going to receive a reply, he lodged an application with the Tribunal.  As to the reasons why the application was late, he stated that he believes that he and his partner have been harshly treated as Home Affairs failed to respond to them about a refund and this is why he was late to the Tribunal, in addition to submitting it to the wrong department.  They have done everything they can to correct mistakes and issues and been dealt a hard blow by Home Affairs regarding a refund, which made them late to the Tribunal. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 30 November 2020: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 8 February 2021.   

7. As the application for review was not received by the Tribunal until 18 June 2021 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

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

   Tamara Hamilton-Noy
   Member