WANG (Migration)

[2018] AATA 274

WANG (Migration) [2018] AATA 274 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Yurong WANG

CASE NUMBER:  1731493

DIBP REFERENCE(S):  BCC2015/3153924

MEMBER:Meena Sripathy

DATE:9 February 2018

PLACE OF DECISION:  Sydney

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

Statement made on 09 February 2018 at 4:54pm

CATCHWORDS

Migration – UK - Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) – Applicant did not receive letter from the Department – Letter returned to the Department uncollected – Change of address recorded by the Department

LEGISLATION
Migration Act 1958, ss 52, 65, 347, 494B

Migration Regulations 1994,r 4.10

CASES
SZNZL v MIAC 186 FCR 271

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions of a delegate of the Minister for Immigration on 20 September 2017 to refuse to grant a Partner (Temporary) (Class UK) and Partner (Residence) (Class BS) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 13 December 2017. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decisions.

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 20 September 2017 and dispatched by post. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 11 January 2018, the Tribunal wrote to the applicant and invited her comments on the issue of the validity of the review application. The applicant was informed that the primary decision was posted to her on 20 September 2017, and on this basis she was taken to have been notified of the decision on 29 September 2017, and the last day for lodging the application for review was 21 days after this date, being 20 October 2017.  As the application for review was not received until 13 December 2017 it is out of time.  She was invited to make comments on this issue by 25 January 2018.

5. On 25 January 2018 the Tribunal received a response to its invitation to comment letter from the applicant’s representative. The response stated that the applicant did not receive the Department’s notification letter. In October 2017 she contacted the Department by phone to enquire about her application status and was told a letter was sent to her. She thought that it could be a letter asking for further information.  On 3 November the applicant instructed her representative to act on her behalf and they sent further information to the Department.  On 9 November the Department advised the representative by email that the case had been finalised. The representative obtained a copy of the decision by FOI request on 20 November 2017. The representative argues that the Department should have notified the applicant of her decision when she contacted by phone in October 2017. 

6. The Tribunal has considered the applicant’s representative’s information and submissions.  It has obtained and considered the documents on the Department’s file.  The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 20 September 2017 and dispatched by registered post to the last address of the applicant held by the Department.  The letter was returned to the Department uncollected (department file records indicate it was recorded as returned to sender 17 November 2017).  Departmental file records indicate that the address to which the notification was sent was the address advised by the applicant to the Department on 12 May 2017. File records also indicate the applicant contacted the Department on 21 June 2017 to confirm her new address and she was advised it had been updated.

7. An address provided orally by a person to the Minister may be relied upon by the Minister for the giving of notifications under s.494B: SZNZL v MIAC 186 FCR 271. In this case, the Court held that while the effect of s.52(3) of the Migration Act was that ordinarily communications with the Minister by an applicant must be in writing, the failure to make the communication in writing did not mean that another form of communication, for example, by telephone, was not effective if the Minister in fact received it. In the present case, Departmental file records indicate clearly that the Department received and recorded a change of address for the applicant and it was to this new address that the notification was sent. The Tribunal observes that this is the same address indicated for the applicant in documents subsequently submitted by her representative to the Department. It is also the address indicated by the applicant as her current address in her review application to the Tribunal.

8. On the material before it, the Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The Tribunal finds that the applicant is taken to have been notified of the decision on 29 September 2017 under s.494C of the Act. Therefore the prescribed period to apply for review ended on 20 October 2017. Unfortunately the Tribunal has no discretion to extend the prescribed period, regardless of the circumstances. 

9. As the application for review was not received by the Tribunal until 13 December 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. 

   DECISION

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

    Meena Sripathy
    Member