Hong (Migration)

[2018] AATA 5895

Hong (Migration) [2018] AATA 5895 (28 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gouw Bun Hong

CASE NUMBER:  1905091

DIBP REFERENCE(S):  BCC2018/5482080

MEMBER:David Barker

DATE:28 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2019 at 11:20am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – applicant was notified of the decision in accordance with the statutory requirements – application was lodged outside of the relevant prescribed period– application fee had not been paid – no jurisdiction

LEGISLATION

Migration Act 1958, ss 65, 347, 494C

Migration Regulations 1994, rr 4.10, 4.11, 4.13, 4.31

CASES

Braganza v MIMA (2001) 109 FCR 364

Kirk v MIMA (1998) 87 FCR 99

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 on 7 February 2019 to refuse to grant a Student (Temporary) (Class TU) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 5 March 2019. 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 21 days after the applicant was notified of the decision in accordance with the statutory requirements. Section 347(1)(b) of the Act and r.4.10 of the Regulations require the application for review to be accompanied by the prescribed fee unless a determination has been made under r.4.13(4) that the fee should be reduced on the basis of financial hardship. The prescribed period is set out in r.4.10 of the Regulations and starts when the applicant is notified of the decision. The fee must be paid within the prescribed period: Kirk v MIMA (1998) 87 FCR 99, or if a determination has been made under r.4.13(4), within a reasonable period after that determination: Braganza v MIMA (2001) 109 FCR 364.

3. Departmental records indicate the applicant provided an email address for electronic communication from the Department of Home Affairs, including notification of the outcome of his application.  The email address provided was [email protected].

4. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 7 February 2019 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 wrote to the applicant on 12 March 2019 and invited comment from him in relation to a preliminary view that the application was not valid given it had not been lodged in the 21 days after the notification of the primary decision. It was stated that the application appeared out of time. The letter also stated the application was not valid as the application fee had not been paid. The letter indicated the Tribunal required a response by 26 March 2019. 

6. On 12 March 2019, the Tribunal received an email from the applicant, which stated:

   Thank you for your email.

   I would like to ask for your consideration to accept for my review application.

   I was offshore when my visa refusal decision was made (11 February 2019). I had important family matter with my children.

   I was not aware of it until when I came back to Australia (24 February 2019), I was told by the immigration officer in the airport that my student visa has been refused.

   I only had 2 weeks to consult to migration lawyers regarding my case and I made my decision after that.

   I am not sure how to make the payment as when I was about to make payment, the page was error.

   It took me to the final page which says an officer will contact me for payment.

   I hope that you would consider my review application.

7. The Regulations provide for how and when a review application can be given to the Tribunal. In relation to online applications, made on or after 1 July 2015, r.4.11(5) and r.4.31AA(5) states applications transmitted to a registry of the Tribunal by electronic means, other than by fax, post or by hand, the application is taken to have been received at the time the Tribunal receives it.

8. The Tribunal has considered the applicant’s email regarding the circumstances surrounding his out of time application for a review of the Department’s decision to refuse his application for the Student (Temporary) (Class TU) visa.  Unfortunately, the Tribunal has no discretion in this matter. Once an applicant has been validly notified of the primary decision, the application for review must be lodged with the Tribunal within the relevant prescribed period.  The Tribunal has no power to extend the time limit. 

9. The Tribunal finds that the applicant is taken to have been notified of the decision on 7 February 2019: s.494C of the Act. Therefore the prescribed period to apply for review ended on 28 February 2019.

10. As the application for review was not received by the Tribunal until 5 March 2019 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.

11. The Tribunal notes the issues raised in the applicants email, he refers to difficulty lodging the payment and that he was expecting to be contacted in relation to the payment, but it is apparent that he did not try and initiate payment until nearly two weeks had passed after 24 February 2019.  By this time the prescribed period had elapsed.

12. The prescribed fee has not been paid and no determination has been made (or requested) that the fee should be reduced. In these circumstances, the application for review is not a valid application and the Tribunal has no jurisdiction in this matter.

    DECISION

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

    David Barker
    Member