HU (Migration)

[2018] AATA 5948

HU (Migration) [2018] AATA 5948 (16 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuchi HU

CASE NUMBER:  1816247

DIBP REFERENCE(S):  BCC/1620132

MEMBER:Tania Flood

DATE:16 August 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 August 2018 at 11:59am

CATCHWORDS
MIGRATION – Medical Treatment (Visitor) (Class UB) visa – application for review lodged out of time – notification of refusal sent by email – asserts to have not received notification – notification in accordance with statutory requirements – no jurisdiction

LEGISLATION

Migration Act 1958 (Cth), ss 65, 347(1)(b), 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 Immigration on 19 April 2018 to refuse to grant a Medical Treatment (Visitor) (Class UB) visa under s.65 of the Migration Act 1958 (the Act). The review application was lodged with the Tribunal on 4 June 2018. 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.

3. The material before the Tribunal indicates that the applicant was notified of the decision by letter dated 19 April 2018 and dispatched by email.

4. On 26 June 2018 the Tribunal wrote to the applicant advising him that his application for review appears not to be a valid application as it was not lodged within the relevant time limit.  The Tribunal invited the applicant to make any comments on whether a valid application has been made in writing by 10 July 2018.

5. On 9 July 2018 the applicant emailed the Tribunal and asserted that he never received the Department’s notification letter, either by post or email.  The applicant’s reply includes correspondence between him and an officer of the Department where it is also confirmed that the notification was sent to him by email on 19 April 2018.

6. Based on the information before it the Tribunal is satisfied that the applicant was notified of the decision by letter dated 19 April 2018 dispatched by email to the address the applicant advised.  The Tribunal is also satisfied that the notification of the decision clearly informed the applicant that any review of the matter had to be made within 21 calendar days of the date on which he is taken to have been notified of the decision. 

7. The Tribunal is satisfied that the applicant was notified of the decision in accordance with the statutory requirements.

8. The Tribunal finds that the applicant is taken to have been notified of the decision on 19 April 2018 in accordance with s.494C of the Act. Therefore the prescribed period to apply for review ended on 10 May 2018.

9. As the application for review was not received by the Tribunal until 4 June 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

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

    Tania Flood
    Member