Zheng (Migration)

[2018] AATA 2207

Zheng (Migration) [2018] AATA 2207 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaoqing Zheng

CASE NUMBER:  1730162

DIBP REFERENCE(S):  CLF2014/53055 CLF2017/66004

MEMBER:Nicholas McGowan

DATE:22 May 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 22 May 2018 at 7:26am

CATCHWORDS
Migration – Partner (Residence) (Class BS) visa – Subclass 801 (Spouse) – Review application out of time

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 21 September 2017 to refuse to grant a Partner (Residence) (Class BS) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 30 November 2017. 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 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. The applicant responded to a tribunal invitation to comment on the valdity of her application for review (dated 14 December 2017) in a letter received 24 December 2017 via email (folios 24-30). As the Tribunal has no authority to amend or alter the timeframe in which an application must be made, it has no discretion to take the applicant’s explanation or claims into account, except where they relate to the validity of the notification itself. As no claim has been made in this regard, and there is no evidence of incorrect or ‘defective’ notification, the Tribunal has no lawful discretion over this matter.

5. The Tribunal finds that the applicant is taken to have been notified of the decision on 3 October 2017: s.494C of the Act. Therefore the prescribed period to apply for review ended on 24 October 2017.

6. As the application for review was not received by the Tribunal until 30 November 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

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

   Nicholas McGowan
   Member