VIOLAGO (Migration)

[2017] AATA 1714

VIOLAGO (Migration) [2017] AATA 1714 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bernabe VIOLAGO
Mrs Elizabeth VIOLAGO
Ms Alyssandra Nicole VIOLAGO
Mr Nicholas Alexander VIOLAGO

CASE NUMBER:  1714449

DIBP REFERENCE(S):  BCC2016/4092182

MEMBER:Danica Buljan

DATE:3 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 August 2017 at 5:25pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – Review application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, 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 14 June 2017, to refuse to grant Regional Employer Nomination (Permanent) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The review application was lodged with the Tribunal on 6 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.

3. Pursuant to paragraph 347(1)(b) of the Act and regulation 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 June 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 18 July 2017 the Tribunal invited the applicants to comment upon the fact that the application for review application was not lodged within the prescribed period and that, therefore, the application appeared not to be a valid application for review. The applicants were invited to provide their comments to the Tribunal within 14 days of receiving this letter, namely, by 1 August 2017.

6. The applicants’ representative responded to this invitation on their behalf on 29 July 2017. She explained that due to a serious medical condition she had inadvertently missed the deadline to lodge the application for review with the Tribunal. The representative also included substantial documentary evidence to support this claim.

7. As a result, the representative requested that the Tribunal accept the reasons she had put forward explaining the late lodgment of the application for review and accept it as a valid application on compassionate grounds.

8. The Tribunal finds that in accordance with section 494C of the Act, the applicant is taken to have been notified of the decision on 14 June 2017. Therefore the prescribed period within which the application for review could be made ended on 5 July 2017. As the application for review was not received by the Tribunal until 6 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.

9. Although the Tribunal has carefully considered the explanation put forward by the applicants’ representative regarding the reasons for the lodgment of the application outside of the prescribed period, the Tribunal does not have any discretion to extend the strict statutory timeframes.

10. For these reasons, the application for review was not valid and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    Danica Buljan
    Member