1600174 (Migration)

[2016] AATA 3495

1600174 (Migration) [2016] AATA 3495 (16 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prateek Singh Walia

CASE NUMBER:  1600174

DIBP REFERENCE(S):  BCC2015/2371289

MEMBER:Tim Connellan

DATE:16 March 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 16 March 2016 at 11:33am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 10 December 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 was lodged with the Tribunal on 6 January 2016. 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. 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.

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 10 December 2015 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. On 13 January 2016 the Tribunal wrote to the applicant and invited him to comment on the validity of the application for review, noting it appeared to be out of time.

6. On 3 February 2016, the Tribunal received a submission from the applicant in which he stated his failure to lodge his application in time was a result of his “human error” in calculating the number of days available to lodge the application.  He further stated that the notification email had gone to his “junk” folder. He requested consideration on the grounds of human error.

7. The Tribunal finds that in accordance with s.494C of the Act, the applicant is taken to have been notified of the decision on 10 December 2015. Therefore the prescribed period within which the review application could be made ended on 31 December 2015. As the application for review was not received by the Tribunal until 6 January 2016 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.

   Tim Connellan
   Member