Seow (Migration)

[2020] AATA 6208

Seow (Migration) [2020] AATA 6208 (2 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Arlene Seow

CASE NUMBER:  2007237

DIBP REFERENCE(S):  PNJ

MEMBER:Steven Griffiths

DATE:2 October 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 2 October 2020 at 4.20pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – review application was lodged out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347,494C(5)

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 10 March 2020 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 18 April 2020. 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 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 10 March 2020 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the Department, in purporting to give the notice of the decision in accordance with a method in s.494B, made an error in doing so. Nevertheless, the visa applicant actually received the decision notification, and has not shown that it was at a time later than the relevant deemed receipt period mentioned in s.494C. As such, the visa applicant is taken to have received it as if the deeming provisions in s.494C apply: s.494C(7).

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 March 2020 as per s.494C of the Act. Therefore the prescribed period to apply for review ended on 31 March 2020.

6. The Tribunal notes that another review application was lodged by the parties, on 2 April 2020, being out of the relevant time frame limited and for which the fee was not paid.

7. The Tribunal notes the applicant was advised, by email sent 15 September, that this application for review was not made in accordance with the relevant time frame limited and invited comments to be received by 29 September 2020.

8. The Tribunal notes, and has read and considered, a submission of the applicant received 29 September 2020, confirming a breakdown of the relationship with the sponsor and that the sponsor submitted the review application and she now knows the application was lodged out of time. 

9. As the application for review was not received by the Tribunal until 18 April 2020 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

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

    Steven Griffiths
    Member