Wang (Migration)

[2022] AATA 2092

Wang  (Migration) [2022] AATA 2092 (8 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Jingli WANG

REPRESENTATIVE:  Ms Betty Zhang (MARN: 0964385)

CASE NUMBER:  2206577

HOME AFFAIRS REFERENCE(S):          BCC2019/2811132

MEMBER:Nathan Goetz

DATE:8 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 08 June 2022 at 5:52pm

CATCHWORDS
MIGRATION – Partner (Temporary) (Class UK) visa – Subclass 820 (Partner) – application for review lodged out of time – access to email account – notification of refusal decision – prospects of success – Code of Conduct for registered migration agents – No jurisdiction

LEGISLATION
Migration Act 1958 (Cth), ss 347, 494C
Migration Regulations 1994 (Cth), r 4.10

CASES
Beni v Minister for Immigration and Border Protection [2018] FCAFC 228

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister to refuse to grant a Partner (Temporary) (Class UK) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 May 2019. On 17 March 2022 the delegate refused to grant the visa. In the notification letter the applicant was advised that she had 21 days after which she was taken to have received the notification letter during which she could apply to the Tribunal for review of the refusal decision.

3. The review application was lodged with the Tribunal on 5 May 2022.

4. On 10 May 2022 the applicant wrote to the Tribunal and provided ‘reasons for waiver of the time limitation to apply for review of the refusal decision. This letter was submitted to the Tribunal through her migration agent. It is unnecessary to detail those reasons in any detail, other than to note that the applicant claimed that she could not access the email account to which the refusal letter had been sent.

5. Given the Tribunal’s ultimate decision, it incredulous that the applicant’s migration agent would lodge the review application. It would appear to be a breach of the Code of Conduct for registered migration agents effective 1 March 2022 to assist an applicant to lodge a review application that had no prospects of success. That may be something that the delegate of the Minister may be interested in pursuing.

6. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

7. Pursuant to s 347(1)(b) of the Act and reg 4.10 of the Migration Regulations 1994 (Cth) (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. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 17 March 2022 and dispatched by email.

8. 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 17 March 2022: s 494C of the Act. Therefore, the prescribed period to apply for review ended on 7 April 2022.

9. Just because the applicant could not access her email account does not mean that she was not validly notified of the refusal decision. It was up to her to make sure that she could access her email account if she elected to receive notifications from the delegate through email.

10. As the application for review was not received by the Tribunal until 5 May 2022 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.

11. There is no power for the Migration and Refugee Division of the Tribunal to extend time to make an invalid review application valid: Beni v Minister for Immigration and Border Protection [2018] FCAFC 228 (14 December 2018). The registered migration agent would have been aware of this.

    DECISION

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

    Nathan Goetz
    Member