WEHBE (Migration)

[2018] AATA 2946

WEHBE (Migration) [2018] AATA 2946 (25 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs SARA WEHBE

CASE NUMBER:  1815185

DIBP REFERENCE(S):  BCC2016/4282188

MEMBER:Helena Claringbold

DATE:25 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 25 June 2018 at 11:02am

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, 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 26 April 2018 to refuse to grant a Partner (Temporary) (Class UK) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 24 May 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 6 June 2018, the Tribunal wrote to the review applicant and put to her, that it appeared her application was not a valid application, as it was not lodged within the relevant time frame.  The review applicant was invited to make comment about the validity of the application for review and with comment to be with the Tribunal by 20 June 2018.

4. On 18 June 2018, the review applicant responded via her migration agent. He stated that the review applicant was advised of the visa refusal by her former migration agent. He explained that, the former migration agent notified the review applicant of the decision verbally on 4 May 2018 and provided her with written notification on 8 May 2018.  In addition, it is claimed that the former migration agent advised the review applicant that an application for review of the decision needed to be made within 35 days after receipt of the refusal letter. He goes on to state that notification of a decision to refuse an application must be made in writing and must be transmitted to the applicant by a prescribed method. It is argued that as the refusal decision was not transmitted to the review applicant until 8 May 2018, she is not taken to have received notice of the decision until that date.

5. At the time of visa application, the review applicant, authorised her migration agent, as her authorised recipient and authorised that he receive written correspondence on her behalf.  She was advised that, this authorised the Department to send the authorised person all written correspondence that would otherwise be sent directly to her. She provided full contact details of her migration agent, including his email address of [email protected].  There is no information before the Tribunal that at the time of the decision, the review applicant had withdrawn that authorisation.

6. The material before the Tribunal indicates that the applicant’s migration agent was notified of the decision by letter dated 26 April 2018 and dispatched by email. On that basis, the 26 April 2018, is the date the review applicant is taken to have been notified. The Tribunal is satisfied that the review applicant was notified of the refusal decision in accordance with the statutory requirements.

7. The tribunal considered all of the evidence individually and as a whole and finds that the review applicant is taken to have been notified of the decision on 26 April 2016 in accordance with s.494C of the Migration Act 1958 (the Act). Therefore the prescribed period to apply for review ended on 17 May 2016.

8. As the application for review was not received by the Tribunal until 24 May 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

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

   Helena Claringbold
   Member