Vuong (Migration)

[2018] AATA 3020

Vuong (Migration) [2018] AATA 3020 (2 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Van La Vuong
Mrs Thi Dahn Dang

CASE NUMBER:  1816844

DIBP REFERENCE:  OSF2011/055097  

MEMBER:Rosa Gagliardi

DATE:2 July 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 02 July 2018 at 10:01am

CATCHWORDS
Migration – Contributory Parent (Migrant) (Class CA) visas – Subclass 143 (Contributory Parent) – review application out of time – family circumstances – no jurisdiction

LEGISLATION
Migration Act 1958, ss 65, 347
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 May 2018 to refuse to grant Contributory Parent (Migrant) (Class CA) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 8 June 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. On 14 June 2018 the Tribunal wrote to the applicants to advise that their applications did not appear to be valid ones as they were not lodged within the relevant time limit, being 21 days from the day on which they were taken to have been notified of the primary decisions.  As the primary decisions were emailed to the applicants on 14 May 2018, the Tribunal explained that 14 May 2018 was the date on which they were taken to have been notified and that the last day for lodging the applications for review was 4 June 2018.  As the applications were not received until 8 June 2018, the applications appeared to be out of time.

4. The Tribunal provided the applicants the opportunity to respond.  The applicants responded to the Tribunal stating that the reason for the delay in lodging the applications was due to the business their sons were operating having been burned down and as a result the applicants were extremely busy assisting his sons with insurance companies and the landlord to get the business up and running.  Evidence to support the claim was submitted.  Another reason for the delay was the birth of their granddaughter born on 31 May 2018, which added to the extremely busy period.  Evidence of the birth of the grandchild was also submitted.  The applicants argued that these events were beyond their control and asked that the Tribunal take these factors into consideration.

5. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 14 May 2018 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

6. The Tribunal sympathises with the applicants’ circumstances in which a business was affected by fire and also understands that the birth of their grandchild represented an important event in their lives.  Nonetheless, the Tribunal does not have discretion to vary the 21 day requirement which is applied evenly for all applicants.  The Tribunal cannot make an exception to the requirement.

7. The Tribunal finds that the applicant is taken to have been notified of the decision on 14 May 2018.  Therefore the prescribed period to apply for review ended on 4 June 2018.  As the application for review was not received by the Tribunal until 8 June 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.

   Rosa Gagliardi

   
   

   Member