Russell (Migration)

[2018] AATA 210

Russell (Migration) [2018] AATA 210 (2 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ned Russell

CASE NUMBER:  1800013

DIBP REFERENCE(S):  CLF2013144463

MEMBER:Christine Kannis

DATE:2 February 2018

PLACE OF DECISION:  Perth

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

Statement made on 02 February 2018 at 7:17 am

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Invalid application – Application out of time

LEGISLATION
Acts Interpretation Act 1901 s 36
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 5 December 2017 to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application was lodged with the Tribunal on 1 January 2018. 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 material before the Tribunal indicates that the applicant was notified of the decision to refuse the visa by letter dated 5 December 2017 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 had regard to a letter dated 5 December 2017 sent by the Department to the applicant and dispatched by email in which he was advised of his Review rights. The letter stated that an application for merits review of the decision must be given to the AAT within 21 calendar days after the day on which he was taken to have received the letter.

6. On 1 January 2018 the applicant lodged an application for a review of the decision.

7. On 4 January 2018 the Registrar of the Tribunal sent the applicant a letter (dispatched by email) advising that in the Registrar’s view, his application for review was not a valid application because it was not lodged within the relevant time limit of 21 days. The applicant was invited to comment on the whether he had made a valid application and was asked to respond by 18 January 2018. He was advised that the matter would then be referred to a Member of the Tribunal to make a decision on the validity of the application.

8. On 15 January 2018 the applicant advised the Tribunal by email that he had been working away in the countryside without access to email up until 23 December 2017. He said the Christmas period then followed and that due to a mix up in communication he believed he had 28 days in which to lodge the application for review.

9. Whilst the Tribunal has taken into account the reasons provided by the applicant for failing to lodge the application within the prescribed time of 21 days, there is no discretion under the legislation to find that it has jurisdiction in this matter.

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 5 December 2017. As the last day of the prescribed period fell on a public holiday, the applicant had until the end of the next day that was not a public holiday to lodge his application, i.e. until 27 December 2017: s.36(2) of the Acts Interpretation Act 1901.

11. As the application for review was not received by the Tribunal until 1 January 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

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

    Christine Kannis
    Member