Sanabria (Migration)

[2018] AATA 359

Sanabria (Migration) [2018] AATA 359 (23 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Enrique Antonio Sanabria

CASE NUMBER:  1728099

DIBP REFERENCE(S):  BCC2016/1761556

MEMBER:Kate Millar

DATE:23 January 2018

PLACE OF DECISION:  Adelaide

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

Statement made on 23 January 2018 at 3:13pm

CATCHWORDS
Migration – Cancellation – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Requirement for applicant to be made within 21 days of notification – Application made out of timeframe – Applicants misunderstood timeframe – Tribunal has no jurisdiction to extend the 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 17 October 2017 to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 13 November 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

2. According 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 October 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. In response to a request to comment on the Tribunal’s jurisdiction, Mr Sanabria (through Mrs Sanabria) said they had misunderstood the time frame and thought they had 28 days to lodge an application, and confused the 28 day limit to leave Australia or apply for a bridging visa with the 21 day time frame to lodge an application for review.  Mrs Sanabria said they were trying to obtain supporting statements from family and friends and police checks.

5. Mr Sanabria acknowledges he received the notification of the decision and the Tribunal finds he is taken to have been notified of the decision on 17 October 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 7 November 2017.

6. The misunderstanding about the time frame is understandable and has serious consequences for Mr Sanabria.  However the legislation does not give the Tribunal discretion to extend the time in which to lodge an application.  As the application for review was not received by the Tribunal until 13 November 2017 the application for review was not made in accordance with the relevant legislation and the Tribunal has no jurisdiction in this matter.

   DECISION

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

   Kate Millar
   Member