HE (Migration)

[2017] AATA 1699

HE (Migration) [2017] AATA 1699 (5 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CHANGXIAN HE

CASE NUMBER:  1711791

DIBP REFERENCE(S):  BCC2017/1030869

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 9:30am

CATCHWORDS

Migration – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – Review application lodged out of time

LEGISLATION

Migration Act 1958, ss 65, 347(1)(b), 412(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 10 May 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 2 June 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 10 May 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 13 and 14 June 2017. The applicant has set out his previous qualifications and reasons for undertaking the proposed study. In his letter of 14 June 2017 he apologises for the delay in lodging his application which he attributes to a delay in the transfer of funds to him by his parents to pay relevant fees.

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 10 May 2017. Therefore the prescribed period within which the review application could be made ended on 31 May 2017. The Tribunal is unable to relent to the applicant’s request that it consider the application as it is not a matter in which the Tribunal has discretion.

8. As the application for review was not received by the Tribunal until 2 June 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