Zeng (Migration)

[2018] AATA 1942

Zeng (Migration) [2018] AATA 1942 (2 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Yuechang Zeng

CASE NUMBER:  1805449

DIBP REFERENCE(S):  BCC2017/4008507

MEMBER:Linda Symons

DATE:2 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 02 May 2018 at 10:09am

CATCHWORDS

Migration – Visitor (Class FA) visa – Subclass 600 (Visitor) – Review application out of time – Review application lodged by facsimile transmission – Request for fee reduction

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 10 November 2017 to refuse to grant a Visitor (Class FA) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 1 March 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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 November 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The Tribunal finds that the applicant is taken to have been notified of the decision on 10 November 2017: s.494C of the Act. Therefore, the prescribed period to apply for review ended on 1 December 2017.

5. On 6 March 2018, the Tribunal wrote to the applicant and invited her to comment on the validity of her application for review in writing by 20 March 2018. This letter was sent to her migration agent by email on 6 March 2018. The Tribunal received a response from her migration agent on 20 March 2018.

6. In her response, the applicant’s migration agent stated that she was appointed to represent the applicant in relation to her application for review to the Tribunal. She stated that the applicant was unable to pay the full application fee due to financial hardship and wanted to apply for a reduction of the application fee. She stated that she contacted the Tribunal and was advised to lodge the application for review and the request for a reduction in the application fee by facsimile transmission as it was not possible to lodge the application for review online without paying the whole application fee.   

7. The applicant’s migration agent stated that the application was sent to the Tribunal on 28 November 2017 by facsimile transmission. She stated that she received a facsimile report stating that the job was completed with no error. She stated that she usually received an acknowledgment of application from the Tribunal within a few days of lodging an application for review but, in this case, did not receive an acknowledgment of application until March 2018. She stated that she was unable to contact the Tribunal as she travelled overseas for her father’s funeral.

8. The applicant’s migration agent stated that on 28 February 2018 the applicant contacted her requesting a copy of the acknowledgment of application. She stated that she contacted the Tribunal on 1 March 2018 and was informed that there was no record of the application being received. She stated that she subsequently spoke to another officer from the Tribunal who asked her to email the application for review, supporting documents and facsimile transmission report which she did. She requested that the application for review be accepted as it was submitted prior to 1 December 2018 (sic) and the facsimile transmission report indicates that the document was sent without error. She sent to the Tribunal a copy of the facsimile transmission report in relation to her letter to the Tribunal sent on 20 March 2018.

9. The evidence before the Tribunal indicates that on 28 November 2017 at 2:55:35 pm the Tribunal received the first page of a letter dated 28 November 2017 from the applicant requesting a reduction in the application fee.(Folio 16 on the file). The top left hand corner of the document contains the following date and time: 28-11-17; 13:55 and the top right hand corner contains the following telephone number and page number: 0061 2 92333128 # 1/1. This tends to indicate that a one page document was sent from the applicant’s migration agent’s facsimile number on 28 November 2017 at 1:55pm. The bottom of that document indicates that the transmission was received by the Tribunal on 28 November 2017 at 2:55:35pm, it was “page 1/1” and the duration was :01-21 indicating that a one page document had been received by the Tribunal.

10. The records of the Tribunal indicate that on 1 March 2018 the Tribunal received an application for review, a Request for Fee Reduction form, a bank statement, a two page letter dated 28 November 2017 from the applicant and a Job History Report. The Tribunal sent the applicant’s migration agent an acknowledgment of receipt of the application for review on that date.

11. The Job History Report provided to the Tribunal indicates that there are two entries on 28 November 2017. The first entry was at 13:56:33. Under the heading “Input Source” it states “LPD:ADMISSIONS:visa info admissions: AAT Application.” Under the heading “Output Destination” it states “Send Fax” but does not contain a facsimile number for the destination. Under the heading “Job Information” it states “File 5151:1”. Under the heading “Job Status” it states “Completed.” The second entry was at 13:56:32. Under the heading “Input Source” it states “Folder”. Under the heading “Output Destination” it states “G3 (/without ECM):0292765599:SydFax. Under the heading “Job Information” it states “File 5151”. Under the heading “Job Status” it states “Completed’. The destination number for the second entry is the Tribunal’s facsimile number and may relate to the first page of a letter dated 28 November 2017 from the applicant received by the Tribunal on 28 November 2017.

12. The facsimile transmission report dated 20 March 2018 from the applicant’s migration agent’s office contains different information to the Job History Report. It indicates how many pages were sent and the duration of the transmission.

13. The Tribunal is not satisfied that the above Job History Report is evidence that the application for review was sent to the Tribunal on 28 November 2017. The first entry on that document, in relation to “LPD:ADMISSIONS:visa info admissions: AAT Application.”, does not indicate where that document was sent to or how many pages were sent. On the evidence before it, the Tribunal is not satisfied that the application for review was sent to or received by the Tribunal on 28 November 2017.

14. As the application for review was not received by the Tribunal until 1 March 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

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

    Linda Symons
    Member