Romero (Migration)

[2017] AATA 3095

Romero (Migration) [2017] AATA 3095 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Morris Romero

CASE NUMBER:  1729365

DIBP REFERENCE(S):  CLF2013/147913

MEMBER:Katie Malyon

DATE:14 December 2017

PLACE OF DECISION:  Sydney

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

Statement made 14 December 2017 at 6:49 pm

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Practice and Procedure – Failed to update contact details with the Department – AAT Application lodged out of time Application not made with the relevant legislation

LEGISLATION
Migration Act 1958 ss 65, 347,494C
Migration Regulations 1994 r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged by Mr Morris Romero for review of a decision by a delegate of the Minister for Immigration, dated 20 October 2017, to refuse to grant him a under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 23 November 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. Material before the Tribunal indicates that Mr Romero was notified of the delegate’s decision by letter dated 20 October 2017 sent by registered post to the address stated in his visa application.  The Department also notified Mr Romero of the delegate’s decision by letter dated 20 October 2017 dispatched by email to his nominated email address.  Having reviewed with Department’s file, it is clear that the delegate notified Mr Romero both by email and by post having regard to the fact that an earlier letter of 7 September 2017 - sent by registered post and requesting documentation in support of Mr Romero’s Subclass 801 visa application - was returned to the Department unclaimed.  The Tribunal is satisfied that Mr Romero was notified of the decision in accordance with the statutory requirements: in this regard, the delegate’s letter of 20 October 2017 was sent to his last known address and his last known email address.

5. The Tribunal formed a preliminary view that the application for review was not a valid application as it was not lodged within the relevant time limit. The time limit for lodging a review is 21 days from the day on which the person is taken to have been notified of the primary decision: r.4.10(1)(a) of the Regulations. The primary decision was posted to Mr Romero on 20 October 2017 and, on that basis, 31 October 2017 was the date on which he is taken to have been notified of the delegate’s decision sent by post. In relation to the refusal letter notified by email, notification is deemed to have been effected on the day the document is transmitted, that is, 20 October 2017. On 3 December 2017, Mr Romero responded to the Tribunal’s written invitation to comment on the validity of his application for review.

6. Mr Romero informed the Tribunal that the Department’s refusal letter was sent to his old email address and he only went back to have a look at his old email address because he and his partner were looking for affordable accommodation for an upcoming holiday: it was only then that he noticed the delegate’s refusal letter.  He added it has been several months since he opened his old email account and, as a result, he missed the 21 day time period of applying for a review.  Mr Romero apologised for this and takes full responsibility for not keeping up-to-date with his old emails (after he created a new email address) as well as his failure to update the Department about his new postal address and his new email address.  He notes, however, that the Department had his partner’s email address and his phone number as alternate ways to contact him.  

7. The Tribunal has considered Mr Romero’s response to its invitation to comment of the validity of his review application: however, it does not have any discretion in this matter and must apply the law. In relation to Mr Romero’s comment that the Department had his partner’s email address, the Tribunal observes that since he is the applicant for a Subclass 801 Partner visa the Department was correct in communicating directly with Mr Romero as the visa applicant, rather than his sponsor. Further, in relation to Mr Romero’s comment that the Department had his phone number, the Tribunal notes the Act provides for the Department to communicate (only) by way of documentation dispatched by prepaid post or documentation transmitted by facsimile, email or other electronic means: s.494A – s.494C of the Act. For the following reasons the Tribunal has found that it has no jurisdiction to review the Department’s decision as the review application was not made in accordance with the relevant legislation.

8. The Tribunal finds that, in accordance with s.494C of the Act, Mr Romero is taken to have been notified of the decision on 31 October 2017, the day that he is taken to have received the letter dispatched by prepaid post. Therefore, the prescribed period within which the review application could be made ended on 21 November 2017. As the application for review was not received by the Tribunal until 23 November 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

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

   Katie Malyon

   
   Member