Ukachukwu (Migration)

[2024] AATA 860

Ukachukwu (Migration) [2024] AATA 860 (8 April 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nnamdi Daniel Ukachukwu

CASE NUMBER:  2400452

HOME AFFAIRS REFERENCE(S):          BCC20223790224

MEMBER:Member Nathan Goetz

DATE:8 April 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 08 April 2024 at 12:21pm

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, Schedule 2, cls 801.221, 820.221; r 4.10

CASES

Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for merits review of a decision made under s 65 of the Migration Act 1958 (Cth) (the Act) by a delegate of the Minister refusing to grant the applicant Partner (Temporary) (class UK) (subclass 820) and Partner (Residence) (class BS) (subclass 801) visas.

   BACKGROUND

2. The applicant is a male citizen of Nigeria. He applied for the visas online on 13 September 2022. In the visa application form, he indicated that he was inside Australia at the time of visa application. He also declared that he had not appointed an authorised recipient on his behalf to receive written correspondence from the Department. He provided an email address [specified] for this purpose.

3. On 20 December 2023 the delegate refused to grant the visa. The letter notifying the applicant that the visa is refused is dated 20 December 2023 and was sent by email to the nominated email address.

4. In the letter, the applicant was advised that the visa was refused because he did not satisfy the provisions of the Migration Regulations 1994 (Cth) (the Regulations) and that the attached decision record provided detailed information about the decisions as it related to the applicant. The attached decision record makes it clear that the applicant did not satisfy cl 820.221 of the temporary partner visa and cl 801.221 for the permanent partner visa.

5. The letter also provided the applicant with the information under ‘Review rights’ concerning his right to apply to the Tribunal and seek merits review of the decision.

   ·     “The Department cannot consider your visa applications any further. However, you are entitled to apply to the Administrative Appeals Tribunal (AAT) for a merits review of these decisions.

   ·     An application for merits review of these decisions must be given to the AAT within 21 calendar days after the day on which you are taken to have received this letter.

   ·     As this letter was sent to you by email, you are taken to have received it at the end of the day it was transmitted.

   ·     The abovementioned time in which an application may be made to the AAT for merits review of these decisions is prescribed by law and cannot be extended.

   ·     You may only seek merits review of these decisions with the AAT if you are physically present in Australia at the time the application for merits review is made.”

6. The letter also provided details about the various methods of lodging an application for merits review under the heading ‘Lodging an application for merits review’ and provided the contact points for each of those methods.

7. On 11 January 2024 an application was made by email at 8:06PM to the Tribunal for merits review of the decision.

8. On 8 March 2024 the Tribunal wrote to the applicant and invited his comment on the validity of the merits review application. In the letter, the Tribunal noted that the decision had been emailed to the applicant on 20 December 2023 which was the date he was taken to be notified of the decision. The letter detailed that this meant the last day for lodging the merits review application with the Tribunal was 10 January 2024. As the applicant lodged the merits review application on 11 January 2024 it appeared that the merits review application was out of time. This meant that the merits review application was invalid and the decision could not be reviewed. The letter invited the applicant to comment on the validity of the review in writing by 22 March 2024.

9. On 22 March 2024 the applicant emailed the Tribunal from the same email address he nominated in the visa application form. He attached a written document dated 19 March 2024. In the document, the applicant acknowledged that he received the decision on 20 December 2023 and had to seek review to the Tribunal within 21 days. The applicant wrote that without professional advice, he assumed that the time limit was ‘calculated on a time base (24 hours) from the time of receipt.’ He therefore miscalculated the prescribed period and applied for merits review on 11 January 2024 instead of 10 January 2024. He asked the Tribunal to take into account his personal circumstances, which he detailed in the document.

10. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

11. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 December 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

12. The Tribunal finds that the applicant is taken to have been notified of the decision on 20 December 2023: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 10 January 2024.

13. It is regrettable that the applicant miscalculated the prescribed period for review. However, the letter notifying him that the visa was refused is tolerably clear about the period during which the applicant could make an application for merits review of the decision to the Tribunal. It was the obligation of the applicant to ensure that he read the prescribed timeframe correctly.

14. As made clear in the letter, there is no power to extend time to make a merits review application lodged outside of the prescribed timeframe valid. The Court have confirmed that this is the case for merits reviews within the Migration and Refugee Division of the Tribunal: Beni v Minister for Immigration and Anor [2018] FCCA 756. The Tribunal cannot take into account the applicant’s personal circumstances to extend time to lodge a valid merits review application. The only issue is whether the applicant was validly notified and whether he lodged a valid application for merits review within the prescribed timeframe.

    CONCLUSION

15. As the application for review was not received by the Tribunal until 11 January 2024 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

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

    Nathan Goetz

    
    

    Member