Thakur (Migration)

[2019] AATA 111

Thakur (Migration) [2019] AATA 111 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Raghav Thakur

CASE NUMBER:  1834322

DIBP REFERENCE(S):  BCC2016/3632650

MEMBER:Angela Cranston

DATE:17 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 17 January 2019 at 10:49am

CATCHWORDS

MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – 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 14 September 2018 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 21 November 2018. 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 14 September 2018 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 wrote to the applicant stating that it was of the opinion that the review application was out of time and asked for comments. The Tribunal received a response stating that the applicant had not seen the email until 2 and 3 October because the email containing the refusal until 2 and 3 October was in the junk folder.

5.    The Tribunal finds that the applicant is taken to have been notified of the decision on 14 September 2018: s.494C of the Act. Therefore the prescribed period to apply for review ended on 5 October 2018.

6.    The Tribunal has received a response stating that the refusal letter was sent to the applicant’s junk mail and he had missed the deadline. However, the decision record was sent in accordance with the Act and thus even if it ended up in the applicant’s junk mail he is nevertheless taken to have been notified of the decision on 5 October 2018. Further, the Tribunal has no discretion to waive the period of time within which an application for review must be lodged even if the application was late due to circumstances beyond the control of the applicant.

7.    As the application for review was not received by the Tribunal until 21 November 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

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

Angela Cranston
Member