Vechvimol (Migration)

[2017] AATA 1757

Vechvimol (Migration) [2017] AATA 1757 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rutrada Vechvimol

CASE NUMBER:  1716664

DIBP REFERENCE(S):  CLF2017/28695 CLF2017/58665

MEMBER:Michael Judd

DATE:23 August 2017

PLACE OF DECISION:  Perth

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

Statement made on 23 August 2017 at 4:16pm

CATCHWORDS

Migration – Partner (Residence) (Class BS) visa – Application lodged out of time – Not in migration zone at time of application

LEGISLATION

Migration Act 1958, ss 65, 338(2), 347(1)

Migration Regulations 1994, Schedule 2, r 2.55, r 4.10

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 3 July 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 31 July 2017. 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.

   a. 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 is 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 emailed letter dated 3 July 2017. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

   b.   The Tribunal finds that in accordance with regulation 2.55 of the Regulations the applicant is taken to have been notified of the decision on 3 July 2017. Therefore the prescribed period within which the review application could be made ended at close of business on 24 July 2017. As the application for review was not received by the Tribunal until 31 July 2017 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.

   c. Pursuant to section 347(1) (a) of the Act, an application for review of a Part 5 reviewable decision, which this decision was, must be made in the approved form and be accompanied by the prescribed fee. On 31 July 2017 the Tribunal received a letter handwritten in the name of the applicant seeking review of the department’s decision to refuse to grant a Partner (Residence) (Class BS) visa.  As of the date of this Tribunal decision no application for review has been received in the approved form and nor has any fee been received with respect to the application for review. It also follows that for these reasons the application for review has not been made in accordance with the relevant legislation, and the Tribunal has no jurisdiction in this matter.

   d. Pursuant to section 338(2) of the Act a decision to refuse to grant a non-citizen a visa, including a Partner (Residence) (Class BS) visa, is a Part 5 reviewable decision if the visa could be granted while the non-citizen is physically present in the migration zone and the non-citizen made the application whilst physically present in the migration zone, subject to the provisions of section 338(2)(c), which do not appear to apply in this case. Information available to the Tribunal indicates that the applicant was not physically present in the migration zone when the application for review was received by the Tribunal. Information contained within the Decision Record of the department dated 3 July 2017 indicates that it is highly likely that the applicant was residing in Thailand when application was made, being outside of the migration zone.

   DECISION

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

   Michael Judd
   Member