Du (Migration)

[2023] AATA 1129

Du (Migration) [2023] AATA 1129 (24 April 2023)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Ms Xiangying Du

CASE NUMBER:  2301677

HOME AFFAIRS REFERENCE(S):           BCC2022/3699175

MEMBER:  Alan McMurran

DATE:  24 April 2023

PLACE OF DECISION:  Sydney

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

Statement made on 24 April 2023 at 4:03pm

CATCHWORDS

MIGRATION – Visitor (Class FA) visa – Subclass 600 (Visitor) – review application lodged out of time – No jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347, 494C

Migration Regulations 1994 (Cth), 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 Home Affairs on 18 January 2023 to refuse to grant a Visitor (Class FA) visa under s 65 of the Migration Act 1958 (Cth) (the Act). The review application was lodged with the Tribunal on 9 February 2023. For the following reasons, the Tribunal has found that it has no jurisdiction to review the decision.

1. 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.

1. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 18 January 2023 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements. The last day for lodgement was 8 February 2023.

1. On 14 February 2023, the Tribunal sent a natural justice letter to the applicant as the lodgement of the application appeared to be out of time. The applicant was invited to respond by 28 February 2023.

1. On 14 February 2023, the applicant responded stating:

   ” I want a refund of the application fee. Can you refund me ? Thank you.

   Kind regards, Xiangying”

1. The Tribunal has considered the applicant’s response. The Tribunal is satisfied on the information that that the application was lodged out of time, being 1 day late on 9 February 2023 . The Tribunal also finds that it has no discretion to waive the regulation requirement for lodgement of an application within time and has no discretion to extend the period.

1. The Tribunal finds that the applicant is taken to have been notified of the decision on 18 January 2023: s 494C of the Act. Therefore the prescribed period to apply for review ended on Wednesday,8 February 2023.

1. As the application for review was not received by the Tribunal until 9 February 2023 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

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

Alan McMurran Member

Case Number 2301677  Page 2 of 2