Zhang (Migration)

[2019] AATA 6082

Zhang (Migration) [2019] AATA 6082 (9 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lianbo Zhang
Miss Lirong Rui
Mr Yiteng Zhang

CASE NUMBER:  1909420

DIBP REFERENCE(S):  BCC2017/2729824

MEMBER:Brendan Darcy

DATE:9 October 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 09 October 2019 at 3:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 189 (Regional Sponsored Migration Scheme) – application for review of refusal not made within required time – applicant had no access to email at the time – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347(1)(b), 494C

Migration Regulations 1994 (Cth), 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 21 March 2019 to refuse to grant Regional Employer Nomination (Permanent) visas under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 16 April 2019. 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 21 March 2019 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. On 16 April 2019, the Tribunal invited the applicants to comment on the validity of their applications for review, and to do so by 30 April 2019. On 29 April 2019, the first named applicant responded on behalf of all the applicants by email. Attached to the email is a letter  providing comment stating:

   My visa refusal notification has been sent by email to my email by 21st Mar 2019 and I do know my 21 days for the review has been passed. However, my gmail was protected by security another recovered email, I have forgot the passcode to login this email for my visa communication. So, I have tried to identify and verify my first to get assess and my employer didn’t get the email in this first time as well.

   So therefore, as soon as I got the assess my email and I made the application for the review immediately. I have informed my employer to lodge the review for the nomination from the sponsor point of view as well. (sic)

5. The applicants’ letter about the validity of the review application does not contend that the notification had been invalid but that the applicant had been properly notified but did not access the email due to human error.  The applicant should be aware the Tribunal does not have jurisdiction with regards to review applications lodged outside the prescribed timeframes.

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 21 March 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 11 April 2019.

7. As the application for review was not received by the Tribunal until 16 April 2019 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.

   Brendan Darcy
   Member