BUKYA (Migration)

[2019] AATA 141

BUKYA (Migration) [2019] AATA 141 (21 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PRAVEEN KUMAR BUKYA

CASE NUMBER:  1837631

DIBP REFERENCE(S):  BCC2018/2435097

MEMBER:Jennifer Cripps Watts

DATE:21 January 2019

PLACE OF DECISION:  Sydney

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

Statement made on 21 January 2019 at 9:27am

CATCHWORDS

MIGRATION – Cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – review application out of time – no jurisdiction

LEGISLATION

Migration Act 1958, ss 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 (the delegate) on 13 September 2018 to cancel the applicant’s Student (Temporary) (Class TU) visa under the Migration Act 1958 (the Act).  The review application was lodged with the Tribunal on 21 December 2018.  The applicant provided a copy of the delegate’s decision to the Tribunal.  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 seven (7) working 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 13 September 2018 and it was dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

4. The applicant lodged the review application on 21 December 2018 and provided the Tribunal with a copy of the delegate’s decision to cancel the applicant’s Subclass 500 student visa, dated 13 September 2018.  In the notification letter of the same date, the applicant was informed that he was entitled to apply to the Tribunal for a merits review and that an application for merits review must be given to the Tribunal within seven (7) working days after he is taken to have received the notification letter.

5. On 4 January 2019 the Tribunal wrote to the applicant and informed him that it appeared his review application was not made within the relevant seven working day time limit.  He was informed that the last day for lodging the review application was 24 September 2018 and the reason the application was ‘out of time’ was because he had not lodged the review application with the Tribunal until 21 December 2018 (about two months late).  The applicant was invited to comment on whether a valid application had been made by 18 January 2019.  No response was received. 

6. The Tribunal finds that the applicant is taken to have been notified of the decision on 13 September 2018:  s.494C.  Therefore the prescribed period to apply for review ended on 24 September 2018.

7. As the application for review was not received by the Tribunal until 21 December 2018 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.

   Jennifer Cripps Watts
   Member