GUO (Migration)

[2017] AATA 1691

GUO (Migration) [2017] AATA 1691 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr PENGCHENG GUO

CASE NUMBER:  1708660

DIBP REFERENCE(S):  BCC2016/3238295

MEMBER:Penelope Hunter

DATE:5 July 2017

PLACE OF DECISION:  Sydney

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

Statement made on 05 July 2017 at 12:24pm

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 494C

Migration Regulations 1994, Schedule 2, r 4.10, r 4.31(2)

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 28 March 2017, 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 20 April 2017. 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 28 March 2017 and dispatched by email. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

5. The Tribunal acknowledges and has considered the submissions of the applicant received on 23 May 2017. The applicant acknowledges that his application was received by the Tribunal late, and event he claims was caused by a combination of carelessness and that he was awaiting the transfer of funds from China. The applicant requested a reconsideration of his case.

6. The applicant does not contest the operation of s.412(1)(b) of the Act. Neither does he dispute the operation of r.4.31(2) of the Regulations. He does not dispute that the Tribunal was correct in calculating the last day for giving an application for review.

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 28 March 2017. Therefore the prescribed period within which the review application could be made ended on 18 April 2017. There is no provision in the legislation for the Tribunal to extend the time for lodgement of an application.

8. As the application for review was not received by the Tribunal until 20 April 2017 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

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

   Penelope Hunter
   Member