1507402 (Migration)

[2015] AATA 3116

1507402 (Migration) [2015] AATA 3116 (15 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Quang Tung Dam

CASE NUMBER:  1507402

DIBP REFERENCE(S):  BCC2015/1088609

MEMBER:Mara Moustafine

DATE:15 July 2015

PLACE OF DECISION:  Sydney

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

Statement made on 15 July 2015 at 3:43pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. The applicant lodged an application for review of a decision of a delegate of the Minister for Immigration, dated 13 May 2015 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act).

2. The review application form was lodged online with the Tribunal on 31 May 2015. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision as the application was not made in accordance with the relevant legislation.

3. According to s.347 of the Act, an application for review by the MRT must, among other things, be made in the 'approved form' (s.347(1)(a) of the Act); and be given to the Tribunal within the prescribed period (s.347(1)(b) and r.4.10 of the Migration Regulations 1994).

4. The expression ‘approved form’ is defined in s.5 of the Act as a form approved by the Minister in writing.  Under s.495 of the Act, the Minister may, in writing, approve a form for the purposes of a provision in the Act in which the expression ‘approved form’ is used.  The power to approve forms has been delegated to the Principal Member in accordance with s.496 of the Act (see Instrument of delegation dated 25 February 2005).  For the purposes of s.347, the current approved form is ‘M2’ for applicants in immigration detention and ‘M1’ for all other applicants. If the approved form is not used, there will not be a valid application. 

5. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. In the present case, the prescribed period ended on 3 June 2015.

6. The application form lodged online by the applicant on 31 May 2015 was made on form eM2 - MRT application form for persons in immigration detention. However, as Departmental records indicated that the applicant was not in immigration detention, the approved form to be used for online lodgement was eM1 – MRT application form for persons not in immigration detention.   

7. The Tribunal formed the preliminary view that it did not have jurisdiction because the application lodged online on 31 May 2015 was not made in the approved form.  An officer of the Tribunal wrote to the applicant on 9 June 2015 inviting him to comment on the validity of his application for review by 23 June 2015. The letter was despatched by email to the address identified by the applicant for correspondence. However, no response was received from the applicant and no application in the approved form was received within the prescribed period.

8. As the delegate’s decision is not reviewable in these circumstances it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in this matter.

   DECISION

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

   Mara Moustafine
   Member